Full text of "Fairness Report"

See other formats

Fairness Doctrine 145 

FCC 85-495 

BEFORE THE 
FEDERAL COMMUNICATIONS COMMISSION 

I ; 

Washington, D.C. 20554 



In the Matter of 

Inquiry into Section 73.1910 of the 
Commission's Rules and Regulations 
Concerning the General Fairness Doctrine 
Obligations of Broadcast Licensees 



Gen. Docket 

No. 84-282 



Report 
(Proceeding Terminated) 

Adopted: August 7, 1985; Released: August 23, 1985 

By the Commission: Chairman Fowler issuing a separate 
statement; commissioner quello concurring and 
issuing a statement; commissioner rivera not 
participating. 

L Introduction 

1. Before the Commission for consideration are the matters 
raised by the Notice of Inquiry in the above-cap tioned proceeding 
in which the Commission solicited comments on the statutory, 
constitutional, and policy implications underlying the fairness 
doctrine. Specifically, the Commission questioned whether the 
doctrine is constitutionally permissible under current marketplace 
conditions and First Amendment jurisprudence. Moreover, as a 
policy matter, the Commission inquired whether the doctrine 
remains necessary to further the governmental interest in an 
informed electorate and solicited comment on whether or not the 
doctrine, in operation, has an impermissible "chilling" effect on 
the free expression of ideas. Finally, the Commission queried 
whether the fairness doctrine is codified either by Sections 315 or 
by the general public interest standard embodied in the Communi- 
cations Act. 



1 Notice of Inquiry in Gen. Docket No. 84-282, FC 84-140, 49 Fed. Reg. 20317 
(May 14, 1984) [hereinafter cited as "Notice"]. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 145 1986 



146 Federal Communications Commission Reports 

2. More than one hundred parties submitted formal comments 
and reply comments in this proceeding. 2 Many other persons 
participated in this proceeding through the submission of informal 
comments. In addition, the Commission, en banc, on February 7 
and 8, 1985, heard oral presentations on. the issues raised by the 
Notice, 

3. The fairness doctrine, as developed by the Commission, 
imposes upon broadcasters a two-pronged obligation. Broadcast 
licensees are required to provide coverage of vitally important 
controversial issues of interest in the community served by the 
licensees and to provide a reasonable opportunity for the presen- 
tation of contrasting viewpoints on such issues. 3 An examination 
of the genesis of the fairness doctrine reveals an evolutionary 
process, spanning a considerable period of time, and marked by a 
considerable uncertainty as to the proper approaches to insure 
that licensees operate in the public interest. 4 This inquiry is a 
further step in a continuing process in evaluating the fairness 
doctrine. 5 In undertaking this reexamination, we will first deter- 
mine the purposes underlying promulgation of the fairness doc- 
trine and then assess, in light of current market place conditions, 
whether or not its retention is consistent with the public interest. 

4. Our past judgment that the fairness doctrine comports with 
the public interest was predicted upon three factors. First, in light 
of the limited availability of broadcast frequencies and the 
resultant need for government licensing, we concluded that the 
licensee is a public fiduciary, obligated to present diverse view- 



2 A list of all the parties which filed formal comments and reply comments in 
this proceeding is contained in the attached Appendix, 

s Fairness Report in Docket No. 19260, 48 FCC 2d 1 (1974), recon. denied, 58 
FCC 2d 691 (1976), affd sub nom. National Citizens Committee for Broadcast- 
ing v, FCC, 567 F.2d 1095 (D.C. Cir. 1977), cert denied, 436 U.S. 926 (1978) 
[" hereinafter cited as "1974 Fairness Report"]. 

4 For a detailed examination of the history of the fairness doctrine, see Notice t 
supra n.l. 

5 In light of the fact that "the weighing of policies under the 'public interest' 
standard is a task that Congress has delegated to the Commission in the first 
instance" [FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 
810 (1978)], we have an affirmative duty periodically to reassess the wisdom of 
our rules, even those of long standing, and to determine whether or not they 
should be altered or even eliminated in light of changed circumstances. See, 
e.g., NAACP v. FCC, 682 F.2d 993 (D.C. Cir. 1982). The Supreme Court has 
recognized that "[rjegulatory agencies do not establish rules of conduct to last 
forever; they are supposed, within the limits of the law and of fair and prudent 
administration, to adapt their rules and pratices to the Nation's needs in a 
volatile, changing economy." American Trucking Association, Inc. u. Atchison, 
Topeka & Santa Fe Railway Co., 387 U.S. 397, 416, reh. denied, 389 U.S. 889 
(1967). See Motor Vehicle Manufacturers Association of the United States, Inc. 
v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 146 1986 



Fairness Doctrine 147 

points representative of the community at large. We determined 
that the need to effectuate the right of the viewing and listening 
public to suitable access to the marketplace of ideas justifies 
restrictions on the rights of broadcasters. 6 Second, we presumed 
that a 1 governmentally imposed restriction ■ on the content of 
programming is a viable mechanism— indeed the best mecha- 
nism—by which to vindicate this public interest. 7 Third, we 
determined, as a factual matter, that the fairness doctrine, in 
operation, has the effect of enhancing the flow of diverse 
viewpoints to the public. 8 

5. On the basis of the voluminous factual record compiled in 
this proceeding, our experience in administering the doctrine and 
our general expertise in broadcast regulation, we no longer believe 
that the fairness doctrine, as a matter of policy, serves the public 
interest. In making this determination, we do not question the 
interest of the listening and viewing public in obtaining access to 
diverse and antagonistic sources of information. 9 Rather, we 
conclude that the fairness doctrine is no longer a necessary or 
appropriate means by which to effectuate this interest. We believe 
that the interest of the public in viewpoint diversity is fully 
served by the multiplicity of voices in the marketplace today and 
that the intrusion by government into the content of program- 
ming occasioned by the enforcement of the doctrine unnecessarily 
restricts the journalistic freedom of broadcasters. Furthermore, we 
find that the fairness doctrine, in operation, actually inhibits the 
presentation of controversial issues of public importance to the 
detriment of the public and in degradation of the editorial 
prerogatives of broadcast journalists. 

6. We believe that the same factors which demonstrate that the 



6 We stated that it is necessary to vindicate: 

. . . the paramount right of the public in a free society to be informed and to 
have presented to it for acceptance or rejection the different attitudes and 
viewpoints concerning these vital and often controversial issues which are 
held by the various groups which make up the community. It is this right of 
the public to be informed, rather than any right on the part of the 
Government, any broadcast licensee or any individual member of the public 
to broadcast his own particular views on any matter, which is the foundation 
stone of the American system of broadcasting. 

Report of the Commission in Docket No. 8516, 13 FCC 1246, 1249 (1949) 
[hereinafter cited as "1949 Fairness Report"]. See 1974 Fairness Report, 48 FCC 
2d at 2-3. 

7 1974 Fairness Report, 48 FCC 2d at 6. 
§ Id. at 7. 

9 As the Supreme Court has stated, "speech concerning public affairs is more 
than self-expression; it is the essence of self-government. " Garrison v. 
Louisiana, 379 U.S. 64, 74-75 (1966). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 147 1986 



148 Federal Communications Commission Reports 

fairness doctrine is no longer appropriate as a matter of policy 
also suggest that the doctrine may no longer be permissible as a 
matter of constitutional law. We recognize that the United States 
Supreme Court, in Red Lion Broadcasting Co. v. FCC 10 upheld 
the 'constitutionality of the fairness doctrine. But in the interven- 
ing sixteen years the information services marketplace has 
expanded markedly, thereby making it unnecessary to rely upon 
intrusive government regulation in order to assure that the public 
has access to the marketplace of ideas. In addition, the compelling 
evidence adduced in this proceeding demonstrates that the 
fairness doctrine, in operation, inhibits the presentation of contro- 
versial issues of public importance; this fact impels the dual 
conclusion that the doctrine impedes the public's access to the 
marketplace of ideas and poses an unwarranted intrusion upon the 
journalistic freedom of broadcasters. 

7. While we are firmly convinced that the fairness doctrine, as 
a matter of policy, disserves the public interest, the issue as to 
whether or not Congress has empowered us to eliminate the 
doctrine is not one which is easily resolved. The fairness doctrine 
evolved as an administrative policy promulgated by the Commis- 
sion pursuant to congressionally delegated power. While we do 
not believe that the fairness doctrine is a necessary component of 
the general * 'public interest" standard contained in the Communi- 
cations Act, 11 the question of whether or not Congress in 
amending Section 315 in 1959 codified the doctrine, thereby 
requiring us to retain it, is more problematic. In any event, the 
fairness doctrine has been a longstanding administrative policy 
and central tenet of broadcast regulation that Congress has 
chosen not to eliminate. Moreover, there are proposals pending 
before Congress to repeal the doctrine. As a consequence, we 
believe that it would be inappropriate at this time for us to either 
eliminate or significantly restrict the scope of the doctrine. 
Instead, we will afford Congress an opportunity to review the 
fairness doctrine in light of the evidence adduced in this proceed- 
ing. 

//. The Constitutionality of the Fairness Doctrine is Suspect 

8. As we stated in the Notice, 12 the fairness doctrine, as a 
governmentally imposed regulation affecting the content of 

10 395 U.S. 367 (1969). 

11 47 U.S.C. § 309 (1982). 

12 See Notice, supra n.l at f 181-95. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 148 1986 



Fairness Doctrine 149 

speech, has significant constitutional ramifications. Because "the 
'public interest' standard necessarily invites reference to First 
Amendment principles," 13 it is appropriate for us to consider the 
constitutional implications of the doctrine. 

9. The First Amendment reflects "a profound national commit- 
ment to the principle that debate on public issues should be 
inhibited, robust, and wide-open. . . , 14 As Justice White noted in 
Miami Herald v. Tornillo: 

Whatever differences may exist about interpretations of the First Amend- 
ment, there is practically universal agreement that a major purpose of that 
Amendment was to protect the free discussion of governmental affairs. 15 

10. The means chosen by the Founders to promote the free 
discussion of public issues was to prohibit the government from 
intruding into the marketplace of ideas. As the Supreme Court 
has stated, "the First Amendment does not speak equivocally. It 
prohibits any law 'abridging the freedom of speech, or of the 
press/ " 16 The framers of the First Amendment proscribed the 
government from placing its official imprimatur on any particular 
viewpoint; they presumed that the marketplace of ideas would 
flourish best without the necessity or danger of governmental 
intervention. 17 

11. Under the First Amendment the expression of opinion on 
matters of public concern "is entitled to the most exacting degree 
of First Amendment protection." 18 As the United States Supreme 



^Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 
U.S. 94, 122 (1973). See also American Security Council Education Foundation 
v. FCC, 607 F.2d 438, 443 (D.C. Cir. 1979), cert denied, 444 U.S. 1013 (1980). 

^New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). 

15 418 U.S. 241, 259 (1974), quoting Mills v. Alabama, 384 U.S. 214, 218-19 (1969) 
(White J., concurring). 

16 Bridges v. California, 314 U.S. 252, 263 (1941). As Justice Potter Stewart has 
stated: 

Those who wrote our First Amendment put their faith in the 
proposition that a free press is indispensable to a free society. They believe 
that "fairness" was too fragile to be left for a government bureaucracy to 
accomplish. 

Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 
U.S. at 145 (Stewart, J., concurring). 

17 The United States Supreme Court has stated that "in the realm of ideas [the 
Constitution] protects expression which is eloquent no less than that which is 
unconvincing/ ' Kingsley International Pictures Corp. t\ Regents of the Univer- 
sity of the State of New York, 360 U.S. 684, 689 (1959). 

18 FCC v. League of Women Voters of California, U.S. , 104 S. Ct. 

3106, 3115 (1984). See First National Bank of Boston v. Bellotti, 435 U.S. 765, 
776-77, reh. denied, 438 U.S. 907 (1978); Buckley v. Valeo, 424 U.S. 1, 14 
(1976). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 149 1986 



150 Federal Communications Commission Reports 

Court has stated, the "[d]iscussion of public issues . . . are 
integral to the operation of the system of government established 
by our Constitution," 19 and, therefore, essential to an informed 
democratic citizenry. 20 In addition, as Justice Brennan has 
recently observed, a "general proscription against unnecessarily 
broad content-based regulation permeates First Amendment juris- 
prudence." 21 

12. The United States Supreme Court upheld the constitutional- 
ity of the fairness doctrine in Red Lion Broadcasting Co, v. 
FCC, 22 "despite the general [F]irst [AJmendment prohibition on 
government regulation of speech and of the press" 23 because the 
Court, at that time, perceived that the doctrine furthered "the 
paramount [F]irst [A]mendment right of viewers and listeners to 
receive 'suitable access to . . . ideas and experiences/ " 24 For 
several reasons, however, the Court's decision in Red Lion, was 
narrowly circumscribed. First, in its opinion, the Court expressly 
stated that its holding did not constitute approval of every aspect 
of the fairness doctrine. 25 Second, relying upon our representation 
that there was no validity to the contention that the fairness 
doctrine, in operation, lessens the coverage of controversial issues 
on the nation's airwaves, 26 the Court asserted that 



19 Buckley v. Valeo, 424 U.S. at 14. 

20 The United States Supreme Court has recently reaffirmed that: 

It is speech on 'matters of public concern' that is "at the heart of the First 
Amendment's protection.' First National Bank of Boston v. Bellotti, 435 U.S. 
765, 776 (1978), quoting Thomhill v. Alabama, 310 U.S. 88, 101 (1940). As we 
stated in Connick v. Myers, 461 U.S. 138, 145 (1983), . . "the Court has 
frequently reaffirmed that speech on public issues occupies the 'highest rung 
of the hierarchy of First Amendment values,' and is entitled to special 
protection. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); 
Carey v. Brown, 447 U.S. 445, 467 (1980)." 

Dunn & Bradstreet, Inc. v. Greenmoss Builders, Inc., U.S. , 53 

U.S.L.W. 4866, 4869 (U.S. June 26, 1985) (No. 83-18). 

21 Id. at 4874 (Brennan, J., dissenting). See also Banzhaf v. FCC, 405 F.2d 1082, 
1100 (D.C. Cir. 1968), cert, denied sub nom. American Broadcasting Companies 
v. FCC, 396 U.S. 842 (1969) ("The First Amendment is unmistakably hostile to 
governmental controls over the content of the press"). 

22 Bed Lion Broadcasting Co. v. FCC, supra n.10. 

23 American Security Council Education Foundation v. FCC, 607 F.2d at 443-44. 

24 Id., quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. at 389-90 (ellipses in 
original). 

25 Red Lion Broadcasting Co. v. FCC, 395 U.S. at 396. 

26 In Red Lion, the Court stated that if broadcasters' 

. . . coverage of controversial public issues will be eliminated or at least 
rendered wholly ineffective [by the doctrine] [s]uch a result would indeed be a 
serious matter, for . . . the purposes of the doctrine would be stifled. 

At this point, however, as the Federal Communications Commission 
has indicated, that possibility is at best speculative. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 150 1986 



Fairness Doctrine 151 

if experience with the administration of these doctrines indicates that they 
have the net affect of reducing rather than enhancing the volume and 
quality of coverage, there will be time enough to reconsider the constitu- 
tional implications. 27 

Third, | the Court's decision was necessarily premised upon the 
broadcasting marketplace as it existed more than sixteen years 
ago. 28 

13. As a consequence, serious questions regarding the constitu- 
tionality of the fairness doctrine continued in spite of the 
Supreme Court's decision in Red Lion. Indeed, as the United 
States Court of Appeals stated in referring to that decision: 

[d]espite this holding, important constitutional questions continue to haunt 
this area of the law. The doctrine and the rule do, after all, involve the 
Government to a significant degree in policing the content of communica- 
tion . . . [and there are] abiding First Amendment difficulties. . . . 29 

14. Subsequent to Red Lion, the Court in Miami Herald 
Publishing Co. v. Tornillo 30 invalidated, on First Amendment 
grounds, a Florida statute which gave political candidates a right 
to reply to criticisms and attacks by a newspaper. In that case 
the Court, in a unanimous opinion, determined that the inevitable 
effect of a governmentally imposed right of reply requirement 
would be to reduce the amount of controversial issues of public 
importance presented in the press. The Court concluded that: 

Faced with the penalties that would accrue to any newspaper that 
published news or commentary arguably within the reach of the right-of- 
access statute, editors might well conclude that the safe course is to avoid 



Id. at 393. See also American Security Council Education Foundation v. FCC, 
607 F.2d at 444. 

^Red Lion Broadcasting Co. v. FCC, 395 U.S. at 393. Similarly, the United 
States Court of Appeals has stated that "[i]f the fairness doctrine cannot 
withstand First Amendment scrutiny, the reason is that to insure a balanced 
presentation of controversial issues may be to insure no presentation, or no 
vigorous presentation, at all." Banzhaf v. FCC, F.2d at 1102-03. 

28 As the Supreme Court has recognized: 

Balancing the various First Amendment interests involved in the 
broadcast media and determining what best serves the public's right to be 
informed is a task of a great delicacy and difficulty, . . . The problems of 
regulation are rendered more difficult because the broadcast industry is 
dynamic in terms of technological change; solutions adequate a decade ago 
are not necessarily so now, and those acceptable today may well be outmoded 
10 years hence. 

Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 

U.S. at 102. 
W Straus Communications, Inc. v. FCC, 530 F.2d 1001, 1008 (D.C. Cir. 1976). 
30 Miami Herald Publishing Co. v. Tornillo, supra n.15. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 151 1986 



152 Federal Communications Commission Reports 

controversy. Therefore, under the operation of the Florida statute, political 
and electoral coverage would be blunted or reduced* Government-enforced 
right of access inescapably "dampens the vigor and limits the variety of 
public debate." 31 

Indeed, the Court, in Miami Herald, intimated that the regulatory 
requirements that we impose may be evfcn more inhibiting than 
those contained in the "right of reply" statute because print 
journalists are not "subject to the finite technological limitations 
of time that confront a broadcaster. . . ," 32 

15. In FCC v. League of Women Voters 33 the Court has 
recently reaffirmed that the constitutional permissibility of the 
fairness doctrine is predicated upon a factual presumption that 
the doctrine has the effect of enhancing the coverage of controver- 
sial issues available to the viewing and listening public. Indeed, 
the Court stated that it would be obligated to reevaluate the 
constitutionality of the doctrine if the Commission demonstrated 
the falsity of this assumption. 34 In addition, the Court indicated 
that it may be willing to reassess the constitutional standards 
traditionally applied in broadcast regulation. The Court stated 
that: 

The prevailing rationale for broadcast regulation based upon spectrum 
scarcity has come under increasing criticism in recent years. Critics, 
including the incumbent Chairman of the FCC, charge that with the 
advent of cable and satellite television technology, communities now have 
access to such a wide variety of stations that the scarcity doctrine is 
obsolete. See, e.g., Fowler & Brenner, A Marketplace Approach to 
Broadcast Regulation, 60 Tex. L. Rev. 207, 221-226 (1982). We are not 
prepared, however, to reconsider our longstanding approach without some 
signal from Congress or the FCC that technological developments have 
advanced so far that some revision of the system of broadcast regulation 
may be required. 35 



31 Id. at 257, quoting New York Times Co. v. Sullivan, 376 U.S. at 279. 

32 Id. at 256-57. 

33 FCC v. League of Women Voters of California, supra n.18. 

34 The Court asserted that: 

As we recognized in Red Lion, however, were it to be shown by the 
Commission that the fairness doctrine "has the effect of reducing rather than 
enhancing" speech, we would then be forced to reconsider the constitutional 
basis of our decision in that case. 

Id. at 3117 n.12, quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. at 393 
(emphasis added). 

35 Id. at 3116 n.ll. The United States Court of Appeals has also indicated that 
the proliferation of broadcast outlets may affect the extent to which the speech 
of broadcasters is protected by the First Amendment: 

[t]oday when the number of broadcast stations not only far exceeds the 
number when the Communications Act was adopted and the number when 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 152 1986 



Fairness Doctrine 153 

Our reading of this language is that the decision in Red Lion, as 
well as the level of constitutional scrutiny applied to content 
regulation of broadcast speech, could change if the factual 
predicates which the Supreme Court relied upon in that case have 
change^ As a consequence, while we recognize that the Supreme 
Court's decision in Red Lion is controlling law unless the Court 
expressly states otherwise, we do not agree with the position of 
some commenters that the mere recitation of the Court's decision 
in Red Lion is sufficient to definitively resolve the complex 
constitutional issues presented by the doctrine. 36 

16. We now turn to identifying the standard of review appropri- 
ate to restraints on broadcast speech. In ascertaining whether or 
not a particular broadcast regulation comports with the First 
Amendment, the United States Supreme Court historically has 
applied standards which are different from those governing "the 
traditional free speech case." 37 Specifically, the Court has asserted 
that the utilization by the broadcast media of a public resource 
justifies the application of what it characterizes as "an unusual 
order of First Amendment values." 38 Under this bipartite stan- 
dard, the interest of the public under the First Amendment is 
paramount. 39 The second part of this standard recognizes the 



the National Broadcasting Co. case was decided and rivals and perhaps 
surpasses the number of newspapers and magazines in which political 
messages may effectively be carried, it seems unlikely that the First 
Amendment protections of broadcast political speech will contract further, 
and they may well expand. 

Loveday v. FCC, 707 F.2d 1443, 1459 (D.C. Cir. 1983), cert denied, 104 S.Ct. 
1907 (1984); See also Banzhaf v. FCQ supra n.21; Quincy Cable, TV Inc. v. 
FCC, No. 83-1283 (D.C. Cir. July 19, 1985). 

36 Similarly, we do not believe that the mere fact that the fairness doctrine is a 
regulation of long-standing makes it invulnerable to First Amendment chal- 
lenge. The United States Court of Appeals has stated that: 

It may well be that some venerable FCC policies cannot withstand 
constitutional scrutiny in light of contemporary understanding of the First 
Amendment and the modern proliferation of broadcasting outlets. 

Banzhaf v. FCC, 405 F.2d at 1100. 

37 Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 
U.S. at 101. 

38 Id. 

39 Red Lion Broadcasting Co. v. FCC, 395 U.S. at 390. Contrary to the position of 
some commenters (see, e.g., Reply Comments of Ecumedia) the general public 
has no First Amendment right to speak on broadcast frequencies. See, e.g., 
Columbia Broadcasting System, Inc. v. Democratic National Committee, supra 
n.13. The juxtaposing of speakers' and listeners' rights provides an important 
underpinning of the framework the Supreme Court has employed in analyzing 
constitutional constraints in the broadcast regulatory area. It suggests that 
some lessening of the rights of one group (speakers) is necessary to increase the 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 153 1986 



154 Federal Communications Commission Reports 

substantial rights of broadcasters under the First Amendment. 40 
As the Court has recently stated, "broadcasters are 'entitled 
under the First Amendment to exercise 'the widest journalistic 
freedom consistent with their public [duties].' " 41 Indeed, restric- 
tions on the First Amendment rights of broadcasters are upheld 
only if these are found to be narrowly tailored regulations 
necessary to vindicate the public's paramount right to receive 
information essential to a functional democracy. 42 This standard 
of review appears to have left broadcast speech in a position of 
protection less favorable than the printed media. This dichotomy 
is vividly presented by comparing the Red Lion and Miami 
Hearald cases, decided within five years of each other. Had the 
Red Lion court required of the Commission a showing of 
compelling state interest, as it required of the state of Florida in 
Miami Herald, it is doubtful that the fairness doctrine would have 
survived. But the Red Lion court found that scarcity and its 
effects had made a licensing scheme necessary and went on to 
conclude that that scheme afforded broadcasters a standard of 
review less protective than that accorded the print media. 43 

17. In light of the significant changes that have occurred in the 
communications marketplace, a number of commenters have taken 

rights of another (listeners and viewers). While such an analysis initially 
appears to provide a useful insight into why broadcast licensees receive 
differential treatment under the First Amendment, it conflicts fundamentally 
with what would appear to be the historic philosophy underlying the First 
Amendment. That is, that it is through the protection of the rights of speakers 
that the interest of society as a whole will best be protected. 

40 See, e.g., Columbia Broadcasting System, Inc. v. Democratic National Commit- 
tee, supra n.13; League of Women Voters of California v. FCC, 104 S.Ct. at 
3116-17. 

41 FCC v. League of Women Voters of California, 104 S.Ct. at 3116-17, quoting 
CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981), quoting Columbia Broadcasting 
System, Inc. v. Democratic National Committee, 412 U.S. at 110. 

42 Id. at 3118. 

43 Although Red Lion was a unanimous decision, Justice William O. Douglas did 
not participate and four years later wrote "[m]y conclusion is that TV and radio 
stand in the same protected position under the First Amendment as do 
newspapers and magazines." Columbia Broadcasting System, Inc. v. Demo- 
cratic National Committee, 412 U.S. at 148. (Douglas, J., concurring). Justice 
Douglas added, "I did not participate in that decision [Bed Lion] and, with all 
respect, would not support it. The Fairness Doctrine has no place in our First 
Amendment regime." Id. at 154. And compare: 

We have been beginning, so to speak, in the wrong corner. The question is 
not what does the need for licensing permit the Commission to do in the 
public interest; rather it is what does the mandate of the First Amendment 
inhibit the Commission from doing even though it is to license. 

H. Kalven, Jr., "Broadcasting, Public Policy and the First Amendment," 10 
J.L. & Econ. 15, 37 (1967). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 154 1986 



Fairness Doctrine 155 

the position that the application of a disparate First Amendment 
standard to cases involving broadcast journalists is no longer 
appropriate. These parties argue that the constitutionality of the 
fairness doctrine and other cases involving broadcast journalists 
should :be evaluated under the general constitutional standards 
that apply to the print media. 44 We would agree that the courts 
may w§ll be persuaded that the transformation in the communica- 
tions marketplace justifies the adoption of a standard that 
accords the same degree of constitutional protection to broadcast 
journalists as currently applies to journalists of other media. We 
do not believe, however, that it is necessary or appropriate for us 
to make that determination in this proceeding. 

18. Administrative agencies are not tasked with the duty to 
adjudicate the constitutionality of a federal statute. 45 For the 
reasons set forth in detail below, 46 the issue as to whether or not 
the fairness doctrine is codified is not one which is susceptible of 
an easy resolution. Moreover, we are mindful that it is the 
province of the federal judiciary — and not this Commission — to 
interpret the Constitution. 47 We do not purport, therefore, to 
definitively resolve whether or not the fairness doctrine is 
constitutional. However, for several reasons we believe that it is 
appropriate for us to state our opinion on this issue. First, as 
noted above, constitutional considerations are an integral compo- 
nent of the public interest standard and we believe that an 
evaluation of the constitutionality of the doctrine is necessary in 
order to make a meaningful evaluation as to whether or not 
retention of the doctrine is in the public interest. Second, as the 
expert administrative agency charged by the Congress with the 
day-to-day implementation of broadcast regulation, we believe 
that our opinions on these matters provide a unique perspective 
which may prove useful. 48 Third, as noted above, in upholding the 



44 See generally 11 9-11, supra. 

45 As the United States Supreme Court has stated, "[abjudication of the 
constitutionality of congressional enactments has generally been thought 
beyond the jurisdiction of administrative agencies." Johnson v. Robison, 415 
U.S. 361, 368 (1974), quoting Oestereich v. Selective Service Board, 393 U.S. 
233, 242 (1968) (Harlan, J., concurring in result). Weinberger v. Salfi, 422 U.S. 
749, 765 (1975). 

46 See Section V, infra. 

41 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 

48 The Supreme Court has stated that "in evaluating First Amendment claims . . . 
we must afford great weight to the , , , experience of the Commission." 
Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 
U.S. at 102. Moreover, in FCC v. League of Women Voters of California, the 
Court indicated that it may reevaluate the standard utilized in First Amend- 
ment cases if, inter alia, the Commission provides it with a "signal" that 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 155 1986 



156 Federal Communications Commission Reports 

constitutionality of the fairness doctrine in the Red Lion decision, 
the Supreme Court relied upon our representation that the 
fairness doctrine did not operate to inhibit the coverage of 
controversial issues of public importance; the evidence in this 
proceeding, however, compels the conclusion that this assumption 
is no longer valid. 

19. We believe that there are serious questions raised with 
respect to the constitutionality of the fairness doctrine whether or 
not the Supreme Court chooses to continue to apply the less 
exacting standard which it has traditionally employed in assess* 
ing the constitutionality of broadcast regulation. As demonstrated 
infra, the compelling evidence in this proceeding demonstrates 
that the fairness doctrine, in operation, inhibits the presentation 
of controversial issues of public importance. As a consequence, 
even under a standard of review short of the strict scrutiny 
standard applied to test the constitutionality of restraints on the 
press, we believe that the fairness doctrine can no longer be 
justified on the grounds that it is necessary to promote the First 
Amendment rights of the viewing and listening public. Indeed, 
the chilling effect on the presentation of controversial issues of 
public importance resulting from our regulatory policies affirma- 
tively disserves the interest of the public in obtaining access to 
diverse viewpoints. In addition, we believe that the fairness 
doctrine, as a regulation which directly affects the content of 
speech aired over broadcast frequencies, significantly impairs the 
journalistic freedom of broadcasters. As set forth in detail below, 
in light of the substantial increase in the number and types of 
information sources, we believe that the artificial mechanism of 
interjecting the government into an affirmative role of overseeing 
the content of speech is unnecessary to vindicate the interest of 
the public in obtaining access to the marketplace of ideas. Were 
the balance ours alone to strike, the fairness doctrine would thus 
fall short of promoting those interests necessary to uphold its 
constitutionality. And because the constitutionality of the fairness 
doctrine, in our view, is suspect under the less searching 
broadcast standard of review, a fortiori, it would prove constitu- 
tionally infirm under the more stringent First Amendment stan- 
dard applicable in cases involving the print media. 49 



technological advancements warrant such a reevaluation. League of Women 
Voters, 104 S. Ct. at 3116 n,ll. 
49 Indeed, in light of the Supreme Court's decision in Miami Herald Publishing 
Co. v. Tornillo, supra n.15, it is clear that the fairness doctrine would not be 
constitutional were the Court to apply the general First Amendment standards 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 156 1986 



Fairness Doctrine 157 

20. A number of commenters have argued that the limited 
availability of the electromagnetic spectrum is sufficient to justify 
the fairness doctrine. For example, the Media Access Project and 
the Telecommunications Research and Action Center 
("MAP/TRACT) argue that: 

{ The most important justification for the fairness doctrine is that there 
are more individuals who want to broadcast than there are broadcast 
frequencies for the Commission to allocate. This continuing outstripping of 
supply by demand is the basis of the so-called "scarcity" rationale. 50 

While it is true that the limited availability of the electromagnetic 
spectrum may constitute a per se justification for certain types of 
government regulation, such as licensing, it does not follow that 
all other types of governmental regulation, particularly rules 
which affect the constitutionally sensitive area of content regula- 
tion, are similarly justified. As the United States Court of 
Appeals stated: 

First Amendment complaints against FCC regulation of content are not 
adequately answered by mere recitation of the technically imposed 
necessity for some regulation of broadcasting and the conclusory proposi- 
tions that "the public owns the airwaves" and that a broadcast license is a 
"revocable privilege." 51 

21. In sum, while we recognize that the United States Supreme 
Court found that the fairness doctrine was constitutionally 
permissible sixteen years ago, we believe that the transformation 
of the broadcast marketplace and the compelling documentation 
of the "chilling effect" undermine the factual predicate of that 
decision. We will now specifically address the factors which, in 
our view, mandate a reassessment of our historical position that 
the fairness doctrine is consistent with the public interest. 

717. A Number of Factors Justify a Reassessment of the Fairness 

Doctrine 

A The Need for and Costs of the Fairness Doctrine and its Actual 

governing the print media. 

50 "Comments of Media Access Project and Telecommunications Research and 
Action Center" at 61 [hereinafter cited as "MAP/TRAC Comments"]. 

51 Banzhaf v. FCC, 405 F.2d at 1100 (emphasis in original) (footnotes omitted). 
Indeed, notwithstanding its express recognition of the limited availability of 
the elctromagnetic spectrum in FCC v. League of Women Voters of California, 
the Court invalidated a statutory prohibition on editorializing by funded, 
non-commercial broadcast stations on the grounds that the statute violated the 
First Amendment rights of broadcasters. FCC v. League of Women Voters of 
California, supra n.18. 

102 F.C.C, 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 157 1986 



158 Federal Communications Commission Reports 

Effect on the Coverage of Controversial Issues of Public 

Importance. 

22. As we stated in our Notice, the purpose in instituting this 
inquiry was to undertake a "searching and comprehensive reexam- 
ination of the fairness doctrine . , . . " 52 This reappraisal will 
consist of three parts: an exploration as to whether the doctrine 
furthers or impedes the regulatory and constitutional objectives it 
seeks to promote, an assessment of the potential costs and other 
detriments which may arise from the operation of the doctrine 
and an evaluation as to whether or not the communications 
marketplace has undergone such a transformation that the 
doctrine is no longer warranted or supportable. 

23. As we stated above, the historic justification of the 
retention of the fairness doctrine, as a matter of policy, has been 
that government regulation is necessary to assure access to the 
"widest possible dissemination of information from diverse and 
antagonistic sources," 53 to the listening and viewing public. While 
we have historically expressed our belief that the fairness 
doctrine, in operation, had the effect of expanding coverage of 
controversial issues on the nation's airwaves, 54 we have never 
specifically made an empirical assessment as to the efficacy of 
this chosen regulatory mechanism to promote access by the public 
to the marketplace of ideas. As a consequence, in this proceeding, 
we believe that it is essential to undertake a detailed evaluation 
as to whether or not the fairness doctrine in operation, enhances 
or inhibits the presentation of diverse views on public issues. In 
undertaking this evaluation, we will assess both the potential for 
the doctrine to chill the speech of broadcasters and review the 

52 Notice, supra n.l. at 1f1f4. 

53 Associated Press v. United States, 326 U.S. 1, 20 (1945); 1974 Fairness Report, 
48 FCC 2d at 3. 

54 1974 Fairness Report, 48 FCC 2d at 7. We have, however, always recognized 
the dangerous potential that the fairness doctrine, in operation, could have a 
"chilling effect" on the coverage of controversial issues of public importance. In 
fact, in the 1974 Fairness Report, we stated that: 

there exists within the framework of fairness doctrine administration and 
enforcement the potential for undue governmental interference in the 
processes of broadcast journalism, and the concomitant diminution of the 
broadcaster's and the public's First Amendment interests. 

Id. at 6. We have also indicated that if it were shown in actual operation that 
the doctrine either unnecessarily restricted the journalistic freedoms of broad- 
casters or impeded the right of the public to obtain access to diverse 
viewpoints on public issues, we would be compelled to reassess the policy. See 
Notice of Inquiry in Docket No. 19260, 30 FCC 2d 26, 28 (1971). 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C.2d 158 1986 



Fairness Doctrine 159 

actual evidence presented by the commenting parties to determine 
whether the fairness doctrine impedes or inhibits access by the 
public to the marketplace of ideas. 

24. Because a meaningful evaluation of an administrative policy 
necessarily involves an assessment of regulatory burdens, we shall 
also evaluate the costs and other potential detriments directly and 
indirectly borne by broadcasters, the Commission and the public 
at large which arise from the operation of the fairness doctrine. 
These costs do not merely include financial expenses but may also 
involve a restriction of cherished First Amendment values and an 
increased danger of government abuse. 

25. Finally, in our comprehensive reappraisal of the fairness 
doctrine, we shall determine whether active government interven- 
tion in this constitutionally sensitive area involving content 
regulation is necessary or appropriate in promoting access to the 
marketplace of ideas. In determining whether or not there is a 
need to retain the fairness doctrine, we shall initially assess the 
nature and scope of the relevant market and then evaluate the 
sufficiency of antagonistic viewpoints available to the public in 
that market. We are particularly interested in ascertaining 
whether there have been significant changes in the number and 
variety of information sources available to the public which would 
attenuate the need for an artificial regulatory mechanism to 
assure that the public has access to diverse viewpoints on 
controversial and important issues. 

B. The Fairness Doctrine in Operation Lessens the Amount of 

Diverse Views Available to the Public 

1. Broadcasters Perceive That the Fairness Doctrine Involves 

Significant Burdens 

26. A licensee may be inhibited from presenting controversial 
issues of public importance by operation of the fairness doctrine 
even though the first prong of that doctrine affirmatively requires 
the licensee to broadcast such issues. 55 The reason underlying this 
apparent paradox is that the two parts of the fairness doctrine 
differ markedly in the scope of the controversial issues that they 
encompass, the ease by which a licensee can meet the require- 
ments embodied in the two prongs and the degree to which the 



55 Under the first prong of the fairness doctrine the licensee is required to provide 
coverage of controversial issues of vital importance to the community. See, e.g., 
Friends of the Earth, 24 FCC 2d 743, 750-51 (1970); 1974 Fairness Report, 48 
FCC 2d at 9-10; Representative Patsy Mink, 59 FCC 2d 987 (1976). 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 159 1986 



160 Federal Communications Commission Reports 

Commission, in the past, has taken affirmative action to enforce 
compliance with them. 

27. It is well-established that a licensee, in complying with the 
first prong of the fairness doctrine, has broad discretion in 
determining the specific controversial issues of public importance 
that it chooses to present. 56 Indeed, in our 1974 Fairness Report, 
we stated that "we have no intention of becoming involved in the 
selection of issues to be discussed, nor do we expect a broadcaster 
to cover each and every important issue which may arise in his 
community." 57 Rather, with respect to the affirmative obligation 
to cover controversial issues of public importance "[a] presump- 
tion of compliance exists" 58 and only "in rare instances, where a 
licensee has failed to give coverage to an issue found to be of 
critical importance to its particular community, would questions 
be raised as to whether a licensee had fulfilled its fairness 
obligations." 59 Indeed, the United States Court of Appeals has 
characterized this requirement as one which is "not extensive and 
[can be] met by presenting a minimum of controversial subject 
matter." 60 

28. In contrast to the paucity of challenges under the first part 
of the fairness doctrine, "[t]he usual fairness com- 
plaint . . . concerns a claim that the licensee has presented one 
viewpoint on a * controversial issue of public importance' and has 
failed to afford a 'reasonable opportunity for the presentation of 
contrasting viewpoints.' " 61 The responsive programming obliga- 
tion embodied in the second prong of the fairness doctrine arises 
whenever the licensee airs any controversial issue of public 
importance, even in situations where the issue broadcast is not 



56 See, e.g., 1949 Fairness Report, 13 FCC at 1251. 

57 1974 Fairness Report, 48 FCC 2d at 10. 

58 Memorandum Opinion and Order in BC Docket No. 78-60, 89 FCC 2d 916, 925 
(1982) (emphasis added). 

59 Brent Buell, 97 FCC 2d 55, 57 (1984) (emphasis added). See Memorandum 
Opinion and Order in BC Docket No. 78-60, 89 FCC 2d at 925; 1974 Fairness 
Report, 48 FCC 2d at 10. As the United States Court of Appeals has stated: 

Throughout the history of fairness doctrine enforcement, much more 
attention has been given to th[e] second obligation — the provision of 
opposing points of view on controversial issues about which only one 
viewpoint has been broadcast — than to the first, namely, the affirmative 
obligation to provide coverage of controversial and important issues. The 
FCC has only once sustained a complaint relating to the part one obligation. 

National Citizens Committee for Broadcasting v. FCC, 567 F.2d 1095, 1100 
n.13 (D.C. Cir. 1977), cert denied, 436 U.S, 926 (1978). 

60 American Security Council Education Foundation v. FCC, 607 F.2d at 444. 
61 1974 Fairness Report, 48 FCC 2d at 10. 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 160 1986 



Fairness Doctrine 161 

"so critical or of such great public importance" 62 to trigger a 
requirement under the first part of the fairness doctrine. 63 An 
overwhelming majority of the complaints we receive and virtually 
all our orders directing licensees to take corrective action to 
conform to the requirements of the fairness doctrine involve the 
second prong of that doctrine. 64 

29. As a result of the asymmetry between its two components, 
the fairness doctrine in its operation encourages broadcasters to 
air only the minimal amount of controversial issue programming 
sufficient to comply with the first prong. By restricting the 
amount and type of controversial programming aired, a broad- 
caster minimizes the potentially substantial burdens associated 
with the second prong of the doctrine while remaining in 
compliance with the strict letter of its regulatory obligations. 65 
Therefore, despite the first prong obligation, in net effect the 
fairness doctrine often discourages the presentation of controver- 
sial issue programming. 66 



62 Id. 

63 As the Court of Appeals has stated 

. . . issues giving rise to the part two obligation would not necessarily be 
required to be covered under the first obligation; the threshold which triggers 
the second fairness obligation is lower than that which triggers the first. 

National Citizens Committee for Broadcasting v. FCC, 567 F.2d at 1100 n.13. 

64 See generally n.59, supra. 

65 One commentator has noted that: 

[Licensees risk more by providing programming on controversial issues than 
by ignoring such issues; in only one case in the FCC's history has a 
complaint relating to the coverage requirement been resolved against a 
licensee. Hence, licensees are likely to assume that it is safer to ignore the 
coverage requirement than to risk balancing complaints. . . . 

[This] can only have the effect of encouraging licensees to avoid all 
but the most significant community concerns, discouraging the open debate 
of many important issues. 

B. Chamberlin, 'The FCC and the First Principle of the Fairness Doctrine: A 
History of Neglect and Distortion," 31 Fed. Comm. L.J. 361, 408-09 (1979) 
(footnotes omitted). See also American Security Council Education Foundation 
v. FCC, 607 F.2d at 459 n.5 (Bazelon, J., concurring). 

66 We do not believe that more stringent enforcement of the first prong would be 
an appropriate remedial response to the existence of a "chilling effect." Indeed, 
such an approach increases the severity of major detriments associated with 
the fairness doctrine. For example, contrary to the principles of the First 
Amendment, a stricter regulatory approach would increase the government's 
intrusion into the editorial decisionmaking process of broadcast journalists. It 
would enlarge the opportunity for governmental officials to abuse the doctrine 
for partisan political purposes. Were the chilling effect of the government 
sanction removed, the result might well be greater coverage of issues and thus 
more satisfaction of the policy behind the fairness doctrine's first prong. 
Moreover, a more stringent enforcement of first prong obligations would merely 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 161 1986 



162 Federal Communications Commission Reports 

30. There are a variety of reasons why a broadcaster might be 
inhibited from providing comprehensive coverage of controversial 
issues of public importance by operation of the fairness doctrine. 
One reason is the fear of government sanction. Under our 
regulatory scheme, a braodcaster must obtain a license from the 
Commission prior to entry into the broadcast field. 67 Because 
broadcast licenses are granted only for limited periods of time, all 
broadcasters must periodically renew that license if they wish to 
remain in business. 68 Compliance with the fairness doctrine is an 
important consideration in our determination as to whether 
renewal of a broadcast license is in the public interest. 69 Indeed, 
we have characterized the "strict adherence to the fairness 
doctrine .... as the sine qua non for grant of a renewal of 
license." 70 

31. Because a decision by this Commission to deny the renewal 
of a broadcast license is "a sanction of tremendous potency" 71 
which can be triggered by a finding by this Commission that the 
licensee failed to comply with the fairness doctrine, a licensee has 
the incentive to avoid even the potential for such a determina- 
tion. 72 Therefore, in order to attenuate the possibility that 
opponents, in a renewal proceeding, will challenge the manner in 
which a licensee provides balance with respect to the controversial 
issues it chooses to cover, a broadcaster may be inhibited from 
presenting controversial issue programming in excess of the 
minimum required to satisfy the first prong of the fairness 
doctrine. 73 As Chief Judge David Bazelon has stated, "[w]hen the 



increase the economic costs that are borne both by broadcasters and the 
Commission. 

67 47 U.S.C. § 301 (1982). 

68 Section 307(c) of the Communications Act prohibits the Commission from 
granting a television license for a period exceeding five years or a radio license 
for a period in excess of seven years. 47 U.S.C. § 307(c) (1982). 

«9See47ILS.C. § 309(1982). 

70 Committee for the Fair Broadcasting of Controversial Issues, 25 FCC 2 2d 283, 
292 (1970); Office of Communication of the United Church of Christ v. FCC, 359 
F.2d 944, 1008 (D.C. Cir. 1966) (Burger, C. J.). See also 1974 Fairness Report, 
48 FCC 2d at 10. 

71 Business Executives' Move for Vietnam Peace v. FCC, 450 F.2d 642, 666 (D.C. 
Cir. 1971), rev'd sub nom. Columbia Broadcasting System, Inc. v. Democratic 
National Committee, 412 U.S. 94 (1973) (McGowan, J., dissenting). 

72 As Judge Leventhal recognized, "[flairness rulings raise the problem of a 
chilling effect on broadcast journalism; the licensee "faces the possibility that 
the [controversial programming] will haunt [its] renewal applications." National 
Broadcasting Company, Inc. v. FCC, 516 F.2d 1180 (D.C, Cir. 1975), cert, 
denied, 436 U.S. 926 (1976) (Leventhal, C,J. concurring in part and dissenting 
in part). 

73 The evidence of record from a fairness doctrine supporter demonstrates that 
organizations have effectively used the threat of license revocation in fairness 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 162 1986 



Fairness Doctrine 163 

right to continue to operate a lucrative broadcast facility turns on 
periodic government approval, even a governmental 'raised eye- 
brow' can send otherwise intrepid entrepreneurs running for the 
cover of conformity." 74 

32. While denial of a license renewal is the most severe sanction 
we can impose for failure to abide by the fairness doctrine, 75 it is 
not the only sanction. 76 Typically, upon a finding that a licensee 
has violated the fairness doctrine, we order the broadcaster to 
provide additional programming in order to redress the imbalance 
in time and frequency given to one side of a controversial issue. 77 
Since broadcast time is a valuable resource, such a requirement 



doctrine negotiations in order to pressure broadcasters to give them air time 
for their specific programming. The Public Media Center ("PMC"), an organiza- 
tion which utilizes the fairness doctrine "to help various organizations secure 
air time for the expression of their views via the electronic media," [' 'Com- 
ments of the Public Media Center" at 1, n.l (hereinafter cited as "PMC 
Comments")] has recounted one such instance in which an anti-nuclear coalition 
sought to obtain free advertising time from broadcast stations in order to 
present its views on a nuclear dumping controversy. PMC stated that: 

COND [the anti-nuclear coalition] made it clear that a Petition to Deny 
License Renewal would be filed if the fairness doctrine question went 
unresolved. While it's unlikely the FCC would pull a license solely because of 
a fairness violation, most stations will do everything they can to avoid any 
kind of license challenge. The cost of fighting a Petition to Deny is, after all, 
much higher the price of complying. 

Id. at 14. (emphasis added). Although the stations offered to present the 
anti-nuclear viewpoint by means of a talk show, the coalition took the position 
that this offer was insufficient; instead it demanded that the responsive 
programming requirement of the fairness doctrine be met by the broadcast of 
specific spot advertising prepared by them. Id. at 14. The stations ultimately 
acceded to the coalition's demand. As PMC admitted, it was "[t]he implied 
threat of a license renewal challenge [which] increased the stations' desire for a 
negotiated settlement." Id. at 15. 

74 D. Bazelon, "The First Amendment and the 'New Media'— New Directions in 
Regulating Telecommunications," 31 Fed. Comm. L.J, 201, 206 (1979). 

75 A number of parties disagree that the power of the Commission to refuse to 
renew a station license has an inhibiting effect because the exercise of this 
power is sparingly used. For example, MAP/TRAC contend that "|l]icensees do 
not lose licenses for violation of the fairness doctrine in the coverage of an 
issue and the Commission knows it." MAP/TRAC Comments, supra n.50 at 
137. We disagree. First, contrary to MAP/TRAC's assertion, we have in fact 
denied a license renewal on the basis of a fairness doctrine violation. 
Brandywine Main-Line Radio, Inc. 24 FCC 2d 18 (1970), reconsideration denied, 
27 FCC 2d 565 (1971), affd on other grounds, 473 F.2d 16 (D.C. Cir. 1972), cert, 
denied, 412 U.S. 922 (1973). Second, while we perceive the denial of a license 
renewal to be an extreme remedy which should not be lightly assessed, in light 
of the severity of this sanction, we believe that its mere potential has an 
inhibiting effect. 

™ See^ 52, infra. 

77 See, e.g., Public Notice, "Controversial Issue Programming, Fairness Doctrine," 
FCC 63-734 (July 26, 1963), 25 RR 1899 (1963). See generally Syracuse Peace 
Council, FCC 84-518 (released December 20, 1984), 57 RR 2d 519 (1984). 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 163 1986 



164 Federal Communications Commission Reports 

imposes costs upon the licensee. In order to avoid these costs, a 
broadcaster may be inhibited from presenting more than a 
minimal amount of controversial issue programming. 

33. The potential of a "chilling effect/' however, is not re- 
stricted to the fear by a broadcaster that the Commission will 
find a violation of the fairness doctrine and impose sanctions on 
the licensee. A licensee may also be inhibited from presenting 
controversial issue programming by the fear of incurring the 
various expenses and other burdens which may arise in the 
context of fairness doctrine litigation regardless of whether or not 
it is ultimately found to be in violation of the doctrine. 

34. As one broadcaster noted, licensees are "conscious of the 
probability that coverage of a highly controversial issue will 
trigger an avalanche of protests" 78 demanding air time for the 
presentation of opposing viewpoints. While most requests may be 
made in good faith, there is evidence that some complainants 
invoke a licensee's fairness doctrine obligations in an attempt 
either to pressure a broadcaster to censor specific programming 79 
to harass licensees into presenting a particular spokesman or 
broadcast. 80 Whether or not the requests are legitimate, a station 



78 "Comments of Tribune Broadcasting Co." at 9 [hereinafter cited as "Tribune 
Comments"]. 

79 For example, PMC, a fairness doctrine supporter, describes a situation in which 
a coalition of organizations supporting legalized abortion invoked the fairness 
doctrine in their efforts to convince a Washington, D.C. television station, 
WJLA-TV, to cancel an anti-abortion film. PMC Comments, supra n.73 at 12. 
While the group was unsuccessful, in its Comments PMC recounts several 
situations, which are described infra at If 48-49, in which complainants did in 
fact dissuade broadcasters from airing advertisements supporting or opposing 
ballot propositions. Similarly, as described at f44, infra, the National 
Association of Broadcasters ("NAB") recounts an instance in which a member 
of a religious cult, threatening to file a fairness doctrine complaint, successfully 
demanded the station to cancel a series on the religious organization. 
"Comments of the National Association of Broadcasters", App. Vol., App. D at 
2 (Example No, 1) [hereinafter cited as "NAB Comments"]. 

80 PMC describes the following situation in which an anti-nuclear group used the 
fairness doctrine to have its ballot propositions aired: 

Schwartzman [a Washington D.C. communications attorney] applied muscle 
in Washington. 

Inside forty-eight hours, every radio station had been contacted to 
find out which were running the industry ads . . , . [A] few refused to 
negotiate, claiming their news and public affairs coverage gave adequate 
balance. 

With Schwartzman' s aid, a preliminary complaint was filed against 
the largest station by telegram on Thursday night. 

MNRC [the anti-nuclear group] also called the Chief of the FCC's 
fairness/political broadcast branch at home. On Friday morning, MNRC and 
the station's attorneys negotiated a settlement and the complaint was 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 164 1986 



Fairness Doctrine 165 

nonetheless may incur additional personnel costs in negotiating 
with the group seeking responsive programming. 

35. Broadcasters can also be deterred by the financial costs 
involved in defending a fairness doctrine complaint. The record 
reflects that such costs can be substantial. For example, a 
fairness doctrine complaint was brought against KREM-TV, a 
television station in Spokane, Washington charging the station 
with unbalanced coverage of a bond issue for an international 
exposition entitled "Expo-74," 81 While the Commission ultimately 
made the determination that the licensee did not violate the 
fairness doctrine, the administrative process extended for more 
than 20 months. 82 The licensee incurred legal costs of at least 
$20,000 and other expenses, such as travel expenses, significantly 
added to that total. 83 As the total profits reported by all three 
Spokane televisions stations in 1972 were approximately 
$494, 000, 84 the financial burden borne by the station in defending 



withdrawn. 

With this precedent, and more pressure from Schwartzman, every 
station that had carried the industry's ads was airing MNRC ads for free by 
Friday night. 

PMC Comments, supra n.73 at 31. It is significant that PMC, in describing this 
scenario, does not dispute the stations' contention that they already were in 
compliance with the fairness doctrine by virtue of the fact that their news and 
public affairs programming provided adequate balance to the industry's 
advertisements. Rather, the objective of the anti-nuclear group, as expressed by 
PMC, was to have the stations broadcast their particular advertisements rather 
than to have the stations comply with the requirements of the fairness 
doctrine. It is also noteworthy that the complaint— which was withdrawn in 
less than one day— was filed against the "largest" station; the commenter did 
not state that the anti-nuclear coalition perceived that this station was in 
violation of the fairness doctrine. A number of other examples in which 
complainants invoked the fairness doctrine to demand that a licensee air a 
specific broadcast or present a specific spokesperson are described elsewhere in 
this Report. See Iff 49-50, infra. 
^Sherwyn M. Heckt, 40 FCC 2d 1150 (1973). 

82 The complaint was filed on September 8, 1971; the station responded on 
October 12, 1971 and the complainant replied seventeen days later. The licensee 
made further responses on December 2, 1971 and May 11, 1972. The 
Commission initiated a four-day field investigation on June 5, 1972, The 
Commission made an additional inquiry to the licensee on December 6, 1972 
and the licensee responded on February 6, 1973. The Commission's staff issued 
a ruling vindicating the licensee on May 17, 1973. Id 

83 See ''Comments of Henry Geller and Donna Lampert," App. B at 2 [hereinafter 
cited as "Geller/Lampert Comments"]; "Comments of CBS, Inc." at 83 
[hereinafter cited as "CBS Comments"]; "Comments of the Freedom of 
Expression Foundation" at 75 [hereinafter cited as "FEF Comments"]; NAB 
Comments, supra n.79 at 42. 

84 See Gelier/Lampert Comments, supra n.83, App. B at 2; CBS Comments, supra 
n.83 at 84. Indeed, the station manager of KREM-TV testified that the fairness 
doctrine complaint resulted in a severe personal financial loss. Freedom of 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 165 1986 



166 Federal Communications Commission Reports 

this single fairness doctrine complaint was considerable. More- 
over, in addition to the legal costs and other out-of-pocket 
expenses incurred by the station, the licensee was further 
burdened by the dislocation of normal operational functions that 
nece'ssarily resulted from the significant amount of time expended 
by high-level management and station employees with respect to 
this' matter. 85 

36. Another example of the significant financial burdens which 
can result from fairness doctrine litigation is the NBC award- 
winning 86 documentary on abuses in the private pension industry 
entitled "Pensions: the Broken Promise." 87 Determining that the 
program presented one side of the controversial issue of the 
"performance and need for regulation of private pension plans," 88 
the Commission found NBC was required to present contrasting 
viewpoints. While NBC was ultimately vindicated, 89 the adminis- 
trative and judicial proceedings extended for four years and NBC 
incurred approximately $100,000 in legal costs in defense of the 
fairness doctrine complaint. 90 



Expression Act of 1983: Hearings Before the Senate Committee on Commerce, 
Science and Transportation, 98th Cong., 2d Sess. 129, 227 (1984) [hereinafter 
cited as "1983 Hearings"]. 

85 The President and Vice-President of KREM-TV devoted 80 hours to the 
fairness doctrine complaint. In addition, the station manager and six members 
of the news staff spent 207 hours and 194 hours, respectively, on this matter. 
See Geller/Lambert Comments, supra n,83, App. B at 2-3; NAB Comments, 
supra n,79 at 42 and App. Vol., App. D at 19 (Example No. 17); CBS 
Comments supra n.83 at 84, n.**. Addditional time was incurred by secretarial 
or clerical employees. 

86 NBC received a Christopher Award, a National Headliner Award, an American 
Bar Association Award and the George Foster Peabody Award for its 
investigative documentary. "Comments of the National Broadcasting Co., Inc." 
at 16 [hereinafter cited as "NBC Comments"]. 

87 See, e.g., Notice, supra n.l at Iff 73-75; NBC Comments, supra n.86 at 14-36; 
NAB Comments, supra n.79, App. Vol., App. D at 18 (Example No- 16). 

88 Accuracy in Media, Inc. Against National Broadcasting Co., 44 FCC 2d 1027, 
1043 (1973), rev f d sub nom. National Broadcasting Co. v. FCC, 516 F.2d 1101 
(D.C. Cir. 1974), reversal vacated and hearing en banc granted, 516 F.2d 1155 
(D.C. Cir.), rehearing en banc vacated, 516 F. 2d 1156 (D.C. Cir. 1975), second 
reversal vacated as moot and remanded with direction to vacate initial order 
and dismiss complaint, 516 F.2d 1180 (D,C. Cir.), cert, denied, 424 U.S. 910 
(1976). The Commission subsequently vacated its order and dismissed the case 
as moot. Accuracy in Media, Inc. Against National Broadcasting Co., 58 FCC 
2d 361 (1976). 

89 The United States Court of Appeals reversed the Commission's Order but that 
decision was in turn vacated because the passage of legislation on private 
pension plans had rendered the decision moot. See n.88, supra. 

90 A further example involves the series of editorials critical of the Mayor of 
Milwaukee, other government officials and the city management aired by 
WTMJ. The Mayor, Henry Maier, filed a complaint with the Commission on 
June 5, 1981, arguing, inter alia, that the station had violated the fairness 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 166 1986 



Fairness Doctrine 167 

37. Certain parties take issue with the contention that the fear 
of fairness doctrine litigation can have an inhibiting effect on the 
presentation of controversial issues of public importance. 91 In 
support of their position, these parties argue that the Commission 
requests broadcasters to respond to only a small number of the 
complaints it receives annually and, as a consequence, most 
broadcasters do not in fact incur such costs. The evidence of 
record in this proceeding, however, reflects that broadcasters are 
convinced that these costs can in fact be a significant inhibiting 
factor in the presentation of controversial issues. 92 Moreover, 
while it may be true that most broadcasters may not be 
confronted with actual fairness doctrine litigation, virtually all 
broadcasters do incur administrative and financial costs which 
result from presenting responsive programming and negotiating 
with complainants. Furthermore, in light of the fact that the costs 
involved in fairness doctrine cases which do proceed beyond the 
complaint stage can be prohibitively expensive, particularly to 
smaller stations, we believe that there is a substantial danger that 
many broadcasters are inhibited from providing controversial 
issues of public importance by operation of the fairness doctrine. 

38. We also reject the contention that we should be uncon- 
cerned with the administrative and financial burdens that result 
from the fairness doctrine because they merely represent the cost 
of doing business. Indeed, the United States Supreme Court has 
recognized that financial considerations "may be markedly more 
inhibiting than the fear of prosecution under a criminal statute." 93 



doctrine. This complaint was denied by the Broadcast Bureau application for 
review of this Order filed by the complainant was denied by the Commission 
and the United States Court of Appeals affirmed the Commission's Order. 
Maier v. FCC, 735 F.2d 220 (7th Cir. 1984). The administrative and judicial 
proceedings, however, extended for a period of three years. During the 
pendency of the appellate case, the Manager of Public Affairs of WTMJ, Mr. 
Ed Hinshaw, testified that defense of the fairness doctrine complaint had 
already caused the station to incur legal expenses in excess of $17,000. He also 
estimated that the management and staff time expended on the complaint to be 
more than two person months. 1983 Hearings, supra n.84 at 146; NAB 
Comments, supra n.79, App. Vol. App. D at 21 (Example No. 18). 

91 "Reply Comments of Black Citizens for a Fair Media, Citizens Communications 
Center, League of United Latin American Citizens, National Association for the 
Advancement of Colored People, and National Association for Better Broad- 
casting" at 59 [hereinafter cited as "BCFM Reply Comments' 1 ]. For the reasons 
described above, we also reject the assertion of BCFM that the expenses 
incurred in responding to fairness doctrine complaints are not substantial. Id. 
at 59-60. 

92 See e.g., NAB Comments, supra n.79, App. Vol., App. D at 5, 7, 21-22, 25-26 
(Example Nos. 4, 6, 18, 20). 

^New York Times Co, v. Sullivan, 376 U.S. at 277. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 167 1986 



168 Federal Communications Commission Reports 

To the extent that the fear of incuring financial expenses 
discourages the presentation of controversial issues of public 
importance, important constitutional principles are thwarted; 
indeed such inhibition directly and adversely impacts upon "the 
principle [underlying the First Amendment] that debate on public 
issues should be uninhibited, robust and wide-open . . . ," 94 

38>. In addition to the fear of incurring the administrative and 
financial costs attributable to fairness doctrine obligations, the 
mere accusation by a federal agency or even a complainant that a 
broadcast station has not abided by its responsibility to provide 
balanced coverage of controversial issues can have an inhibiting 
effect. A station is dependent upon the good will of its viewing or 
listening audience as a consequence, a station has a positive 
incentive to avoid a charge which may have the effect of lowering 
its reputation in the community. Broadcasters are acutely aware 
of the harm which may result from even a frivolous charge that 
the station violated the fairness doctrine. For example, WINZ, a 
radio station in Miami, Florida, initiated a petition drive in 
conjunction with the Dade County Consumer Affair's Office that 
was designed to persuade the Florida Public Service Commission 
to reduce or reject a rate increase proposed by Florida Power and 
Light Company. Despite the fact that the radio station was 
ultimately vindicated of any wrongdoing by the Commission, the 
general manager of the station testified that: 

I feel that Florida Power & Light used the fairness doctrine to provide 
themselves with a way to create adverse publicity for WINZ. The simple 
fact that they accused us of violating this rule created the impression we 
were wrong in undertaking the issue, even if that wasn't the case. Often 
the accused party suffers, whether right or wrong, only because they have 
been accused. 95 

40. Similarly, Mr. Bos Johnson, News Director of WSAZ-TV in 
Huntington, West Virginia, recounted a situation in which his 
station was subject to a fairness doctrine complaint during 
negotiations for the transfer of that station. He stated that: 



**I& at 270. 

95 1983 Hearings, supra n.84 at 29 (testimony of Stan Cohen). See also FEF 
Comments, supra n.83 at 73-74; NAB Comments, supra n.79, App. Vol., App. 
D at 27-28 (Example No. 21). In addition to the damage to the reputation of 
the station, the stigma arising from an accusation that the station violated the 
fairness doctrine can have an adverse effect upon the station's employees. For 
example, Mr, Eugene Wilkin, the former general manager of KREM-TV in 
Spokane, Washington testified that the financial and emotional strain arising 
from an accusation that he violated the fairness doctrine was the main reason 
that he left broadcasting management, despite a career in that field spanning 
more than a decade. See e.g., FEF Comments, supra n.83 at 75-76; NAB 
Comments, supra n.70, App. Vol., App. D at 32-33 (Example No. 24). 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 168 1986 



Fairness Doctrine 169 

It was a serious embarrassment to me professionally to feel responsible for 
the cost and effort of a Fairness Doctrine complaint in the midst of 
delicate business negotiations. And for the duration of those negotiations, 
while sitting at my desk working as a journalist, I was always aware of 
the large file containing information relating to the complaint. 96 

41. In sum, with the potential of government sanction; adminis- 
trative; legal, and personnel expenses; and reputational costs, 
there is a significant danger that broadcasters will minimize their 
presentation of controversial issue programming in order to avoid 
the substantial dangers associated with the fairness doctrine. In 
the following section we shall evaluate the record evidence in 
order to ascertain whether or not broadcasters are in fact deterred 
from presenting controversial issue programming by operation of 
the fairness doctrine. 

2. The Record Demonstrates that The Fairness Doctrine Causes 
Broadcasters to Restrict Their Coverage of Controversial Issues. 

42. The record reflects that, in operation, the fairness doctrine 
— in stark contravention of its purpose — operates as a perva- 
sive 97 and significant impediment to the broadcasting of contro- 
versial issues of public importance. 98 In spite of the difficulty 
generally encountered in establishing a "chilling effect," 99 we find 



96 NAB Comments, supra n.83, App. Vol, App. D at 34 (Example No. 25). 

97 The record reflects that the chilling effect resulting from fairness doctrine 
obligation is widespread. A recent survey of broadcasters in the Houston area 
revealed that the majority of responding parties with opinions stated that they 
were personally aware of instances in which programming has been suppressed 
as a direct result of the inhibiting effect of the fairness doctrine. "Comments of 
the Society of Professional Journalists, Sigma Delta Chi and the Legal 
Foundation of America" at 5-6 [hereinafter cited as "Society of Professional 
Journalists' Comments"]. 

98 In our 1974 Fairness Report we rejected the arguments of some broadcasters 
that in operation the fairness doctrine inhibited the coverage of controversial 
issues of importance to the public. In that proceeding, we stated that we have 
seen "no credible evidence that our policies have in fact had 'the net effect of 
reducing rather than enhancing the volume and quality of coverage.' 1974 
Fairness Report, 48 FCC 2d at 8, quoting Red Lion Broadcasting Co. v. FCC, 
395 U.S. at 393. As set forth in this section, however, the substantial and 
significant evidence presented in this proceeding demonstrates the existence of 
a pervasive and substantial "chilling effect" on the presentation of controver- 
sial issues by broadcasters. As a consequence, we can no longer conclude that 
the fairness doctrine operates to enhance, in either quantitative or qualitative 
terms, the amount of controversial issue programming available to the public. 

99 The United States Court of Appeals has stated that: 

Chilling effect is, by its very nature, difficult to establish in concrete and 
quantitative terms; the absence of any direct actions against individuals 
assertedly subject to a chill can be viewed as much as proof of the success of 
the chill as of evidence of the absence of any need for concern. To be sure, 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 169 1986 



170 Federal Communications Commission Reports 

that the evidence of record mandates the conclusion that the 
requirement that broadcasters provide balance in their overall 
coverage of controversial public issues in fact makes them more 
timid than they would otherwise be in airing programming that 
involves such issues. 100 We recognize that the first prong of the 
fairness doctrine requires licensees to present controversial issues 
of public importance to their viewers and listeners; as a conse- 
quence, we do not believe that the fear of fairness doctrine 
obligations typically results in a systematic avoidance of all 
controversial issues by broadcasters. 101 The record reflects, how- 
ever, that the intrusion by government into the editorial decisions 



where actual instances of harassment are established, or where past 
experience with similar regulation yields concerte evidence of a successful 
chill, the case is a stronger one. . , . 

Community-Service Broadcasting of Mid-America, Inc. v. FCC, 593 F.2d 1102, 
1118 (D.C. Cir. 1978). 

100 One example of this "timid" approach is recounted by the station manager of 
the Cornhusker Television Corporation. With the exception of programming 
produced by the network, he states that it is standard practice for the station 
not to accept nationally produced programming which discusses controversial 
subjects: 

The reason for this [policy] is although the producer says the program is 
objective in nature, we as licensees must be the sole judge of what is or is 
not controversial in order to act properly under the Fairness Doctrine. Also, 
is it true that what a producer in New York or Washington D.C. may 
consider objective, may not be defined in the same G way in Nebraska 
because as you know viewpoints vary drastically from one section of the 
country to another. Therefore, there are probably some good Public Affairs 
programs which we have decided not to run because the Fairness Doctrine 
might come into play and we would not be prepared to give reasonable access 
to opposing viewpoints. 

NAB Comments, supra n.79, App. Vol., App. D at 38 (Example No. 27) 
(emphasis omitted). Notwithstanding the station manager's express representa- 
tion that the avoidance of fairness doctrine obligations was the reason that the 
station rejected all non-network nationally-produced programming, BCFM 
nonetheless contends that this policy must be based on some other reason. 
BCFM argues that "if the station truly wished to avoid controversial subjects, 
it would review each program independently, "whether or not it was locally or 
nationally produced. BCFM Reply Comments, supra n.91 at 65. BCFM's 
argument, however, ignores the fact that a station may wish to lessen the 
amount of controversial public issue programming in order to minimize the 
burdens associated with providing access to opposing viewpoints without 
totally eliminating such programming, particularly in light of the fact a total 
elimination would subject the station to charges that it violated the first prong 
on the fairness doctrine. Furthermore, as noted above, the station manager 
affirmatively stated that the reason that station adopted this policy was to 
minimize the regulatory burdens associated with the fairness doctrine. 

101 At least one broadcaster, however, has candidly admitted that "his news staff 
avoids controversial issues as a matter of routine because of the Fairness 
Doctrine." NAB Comments, supra n.79, App. Vol., App. D at 5 (Example No. 
4). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 170 1986 



Fairness Doctrine 171 

of broadcast journalists occasioned by fairness doctrine require- 
ments overall lessens the flow of diverse viewpoints to the public 
to the detriment of the broadcasters and the public alike. 

43. Journalists who have worked in both the broadcast and 
print media have testified that the very existence of the fairness 
doctrine creates a climate of timidity and fear, unexperienced by 
print journalists, that is antithetical to journalistic freedom. The 
inhibitions resulting from the interjection of a ubiquitous and 
brooding governmental presence into the editorial decisionmaking 
process is vividly described by Mr. Dan Rather, Managing Editor 
and Anchor of CBS News, as follows: 

When I was a young reporter, I worked briefly for wire services, small 
radio stations, and newspapers, and I finally settled into a job at a large 
radio station owned by the Houston Chronicle. Almost immediately on 
starting work in that station's newsroom, I became aware of a concern 
which I had previously barely known existed - the FCC. The journalists at 
the Chronicle did not worry about it; those at the radio station did. Not 
only the station manager but the newspeople as well were very much 
aware of this Government presence looking over their shoulders. I can 
recall newsroom conversations about what the FCC implications of 
broadcasting a particular report would be. Once a newsperson has to stop 
and consider what a Government agency will think of something he or she 
wants to put on the air, an invaluable element of freedom has been lost. 102 

44. The record reflects that broadcasters from television net- 
work anchors to small radio station journalists perceive the 
fairness doctrine to operate as a demonstrable deterrent in the 
coverage of controversial issues. Indeed, the record is replete with 
descriptions from broadcasters who have candidly recounted 
specific instances in which they decided not to air controversial 
matters of public importance because such broadcasts might 

102 CBS Comments, supra n.83 at 72-73. Similar sentiments have been expressed 
by Mr. Bill Monroe, moderator and executive producer of the popular show 
"Meet the Press." He has stated that: 

Some years ago as a young man I worked for a newspaper, I was very 
impressed with the spirit of independence on the part of the editors of the 
newpaper. They didn't care if something they put in the paper offended a 
major political figure. Later I went to a television station and slowly I 
discovered that the managers of the television station were a little afraid of 
government. They were timid, conscious of government looking over their 
shoulder in a way that the newspaper publisher and editor for whom I had 
worked had not been. I began to feel I was a little bit less than free, and it 
worried me. 

FEF Comments, supra n.83 at 69, quoting American Enterprise Insitute 
Roundtable, Freedom of the Press (July 29 and 30, 1975) published by the 
American Enterprise Institute for Public Policy Research, Washington D.C. 
(Statement of Bill Monroe before the National Press Club). 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C.2d 171 1986 



172 Federal Communications Commission Reports 

trigger fairness doctrine obligations. For example, fearing the 
imposition of onerous regulatory burdens, Meredith Corporation 
states that one of its stations elected not to air a paid program on 
the nuclear arms race. 103 As a result of this decision, the public 
was deprived of information on an iiriportant public issue. 
Similarly, Mr. J. T. Whitlock, the President and General Man- 
ager of the Lebanon-Springfield Broadcasting Company, testified 
that the fear of having to defend a fairness doctrine complaint 
was the reason that his station did not editorialize on an 
important local issue even though, in his editorial judgment, the 
situation ". . . cried for editorials by the station." 104 

45. As a further example, after work had begun in the 
preparation of a series on religious cults, the manager of a 
Southern California radio station decided that the series would 
not be broadcast. The decision to cancel this series was not based 
upon the editorial judgment of the broadcaster but rather upon an 
assessment of the legal and personnel costs associated with 
defending a possible fairness doctrine complaint. 105 Similarly, Mr. 



103 "Meredith Corporation's Comments Regarding Notice of Inquiry" at 3. 
[hereinafter cited as "Meredith Comments"]. 

104 NAB Comments, supra n.79, App* Vol., App. D at 29 (Example No. 22). BCFM 
contends that the decision not to editorialize "appears" to be based upon an 
incorrect perception that the "equal time" requirements of the political editorial 
rules are applicable in this situation, BCFM Reply Comments, supra n.91 at 69 
n.32. See 47 C.F.R. §73.1930 (1984). It also asserts that any fairness doctrine 
obligations incurred by the station in the broadcast of this editorial "would 
probably have been met by its news coverage." BCFM Reply Comments, supra 
n.91 at 69 n.32. In our view, both arguments are speculative. There is nothing 
in the example to suggest either that the concern of the broadcaster was based 
upon the requirements of the political editorial rule or that the station's news 
coverage would have provided opposing viewpoints sufficient to meet the 
requirements of the fairness doctrine. 

105 NAB Comments, supra n.79, App. Vol, Vol D at 2 (Example No. 1). Two 
parties contend that this example lends no support for the existence of a 
"chilling effect," but we believe that their arguments lack merit. Citing 
Religion and Ethics Institute, Inc., 42 RR 2d 1657 (1978), a Broadcast Bureau 
decision, MAP/TRAC argue that "[t]he Commission has repeatedly held . . . 
that discussion of religious doctrine and related issues are matters of private, 
not public controversy, and do not involve application of the fairness doctrine" 
("Reply Comments of Media Access Project and Telecommunications Research 
and Action Center" at 39 [hereinafter cited as "MAP/TRAC Reply Comments]); 
as a consequence, MAP/TRAC contend that it was not reasonable for the 
broadcasters to be concerned about potential fairness doctrine litigation. The 
assertion that we have held that issues concerning religious doctrine to be per 
se beyond the scope of the fairness doctrine, however, is clearly erroneous. In 
fact, even Religion and Ethics Institute -- the case cited by MAP/TRAC -- 
noted that some issues concerning religious doctrine "must be considered 
controversial and of importance to the community at large" (42 RR 2d at 1659), 
thereby triggering fairness doctrine obligations. Indeed, the Commission has 
long asserted that "[t]he fairness doctrine extends to all expressions of views 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C.2d 172 1986 



Fairness Doctrine 173 

Paul Jenson, the station manager of Cornhusker Television 
Corporation, asserted that the fear of fairness doctrine obligations 
precipitated his cancellation of a series of public announcements 
concerning inflation. Mr. Jenson testified that the only reason 
that these announcements were not aired was to avoid the 
presentation of opposing announcements mandated by the require- 
ments of the fairness doctrine. 106 Another example in the record is 
the cancellation of a series on the B'nai B'rith by a Pennsylvania 
radio station. The series was not broadcast because the licensee 
felt that it could not afford the personnel time to respond to the 
complaints, the broadcast time to provide responsive program- 
ming or the potential legal fees resulting from complaints by 

perceived extremist groups. 107 In addition, a major Houston 

< 

on controversial issues of public importance, whether or not they [would] be 
deemed religious views by some persons." Brandy wine Main-Line Radio, Inc., 
27 FCC 2d 565, 570 (1971), affd y 473 

F.2d 16 (D.C. Cir. 1972), cert, denied, 412 U.S. 922 (1973). Indeed, in 
Brandy wine, we refused to renew the station's license on the basis, inter alia, 
that it had violated the fairness doctrine with respect to its religious 
programming. Therefore, the argument of MAP/TRAC that it was patently 
unreasonable in this situation for the broadcaster to be concerned about 
potential fairness doctrine litigation is without merit. 

BCFM argues that the broadcaster's fear of incurring the legal and 
administrative costs in defending a fairness doctrine complaint is irrational; 
Therefore it contends that the broadcaster was not reasonably inhibited by 
fairness doctrine obligations and, consequently, this example is not probative 
of a "chilling effect." BCFM Reply Comments, supra n.91 at 67. We have 
addressed the manner in which legal and administrative costs can result in a 
"chilling effect," supra at 11 35-36. We believe, therefore, that BCFM's 
assertion also is without merit. 

106 NAB Comments, supra n.79, App. Vol., App. D at 38-39 (Example No. 27K In 
an attempt to discredit this example, BCFM contends that the station manager 
was not reasonably inhibited by fairness doctrine obligations; it argues that no 
equal access for opposing views was required and contends that the station's 
obligation to provide reasonable access for opposing views "probably" would 
have been met by its news coverage. BCFM Reply Comments, supra n.91 at 69. 
BCFM provides no support for its asssertion concerning the adequacy of the 
station's news coverage in meeting the station's fairness doctrine obligations 
on this issue. In any event, we have no basis for disregarding the station 
manager's explanation for the reason for the cancellation of the series. 

107 NAB Comments, supra n.79, App. Vol, App. D at 62 (Example No. 42). While 
acknowledging that this example "implies" that the broadcaster's cancellation 
was induced by the fairness doctrine, BCFM contends that the broadcaster's 
actual concern was to avoid harassment by extremist groups and that this 
concern would exist without regard to fairness doctrine obligations. BCFM 
Reply Comments, supra n.91 at 62-63 n.30. We disagree. While a station may 
have to incur personnel costs in order to respond generally to complaints by 
the public in the absence of the fairness doctrine, the number of complaints — 
and consequently the amount of personnel costs — are necessarily increased 
when a station is obligated to comply with the fairness doctrine; moreover, the 
costs resulting from a requirement to provide additional "balanced" program- 
ming and the costs incurred in defending broadcast decisions clearly are 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 173 1986 



174 Federal Communications Commission Reports 

television station invited a former city official to address the issue 
of pay raises for police officers but, during the course of the 
interview, the former official also expressed his views on the 
issues of pay increases for firefighters and other municipal 
workers. Fearing to trigger additional fairness doctrine obliga- 
tions, the station refused to air his views on these additional 
topics. 108 

46. Equally or perhaps even more disturbing than the self- 
censorship of individual broadcasts is the fact that the avoidance 
of fairness doctrine burdens has precipitated specific "policies" on 
the part of broadcast stations which have the direct effect of 
diminishing, on a routine basis, the amount of controversial 
material presented to the public on broadcast stations. For 
example, the owner of a broadcast station and two newspapers 
regularly prints editorials in his newspapers but, inhibited by 
regulatory restrictions, is reluctant to repeat the same editorials 
on his radio station. 109 Similarly, the Meredith Corporation 
acknowledges that one of its television stations has chosen "not 
to editorialize on matters of public importance, because of its 
concern that it does not have the resources necessary to seek out 
and provide exposure to opposing viewpoints in all instances." 110 
Unfortunately, the policies of these stations are not atypical. In 
fact, a survey conducted by NAB in 1982 found that only 45 
percent of responding stations had presented editorials in the 
preceding two years. 111 Moreover, the record reflects that even 
stations which do elect to editorialize are inhibited by fairness 
doctrine requirements. According to Mr. Donald Gale, News 
Director of KSL-AM, the regulatory burdens associated with the 
fairness doctrine were a crucial factor in the decision of his 
station not to air "guest editorials." 112 

47. Policies of stations that restrict public issue programming 
are not limited to editorials; they extend to the airing of political 



attributable directly to fairness doctrine obligations. 

108 Society of Professional Journalists' Comments, supra n.97 at 7-8. 

109 NAB Comments, supra n.79 t App. Vol., App. D at 61 (Example No. 41). In its 
Reply Comments, MAP/TRAC characterize this example as "ignorant and 
meaningless" but provide no support for this pejorative appellation. 
MAP/TRAC Reply Copmments, supra n.105 at 29. 

110 Meredith Comments supra n.103 at 3. See also "Comments of Arizona 
Television Company," 

111 NAB Comments, supra n.79 at 38. Moreover, in it Comments NAB describes 
an informal survey conducted its the Northwest regional conference which 
found at least 95 percent of the broadcasters, inhibited by regulatory concerns, 
did not speak out on local issues. Id., App. Vol., App. D at 52 (Statement of 
Rev. Jim Nicholls) at 52 (Example No. 36). 

112 /<£, App. Vol., App. D at 11 (Example No. 11). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 174 1986 



Fairness Doctrine 175 

advertisements. 113 For example, as a direct result of fairness 
doctrine obligations, CBS acknowledges that its owned and 
operated stations, as a general matter, limit the amount of time 
they will sell both to persons seeking to place advertisements 
relating to ballot propositions and to political parties attempting 
to purchase broadcast time outside of campaign periods. CBS 
states, that many of the television stations in four of the five 
markets in which those stations operate also either refuse or 
severely limit the sale of time for ballot proposition advertising. 114 
Ms. Harriet Kaplan, the Chief Executive Officer of Station WAYS 
and WROQ-FM in Charlotte, North Carolina states that as a 
result of the regulatory obligations associated with the fairness 
doctrine, "I do not even let our sales department pursue political 
advertising. It is handled by a separate person. . . . " 115 The 
President and General Manager of WNJR Radio in Union, New 
Jersey also testified that she is "inclined to steer away from 
[political advertisements] because of the [regulatory] problems." 116 
Similarly, Ms. Karen Maas, Vice President and General Manager 
of KIUP-AM and KRSJ-FM in Durango, Colorado states that her 
stations "think twice" about covering state ballot and related 
political issues. 117 

48. Moreover, the evidence of the "chilling effect" of the 
fairness doctrine, as applied to political advertisements, is not 
limited to the statements of broadcasters. For example, in its 
comments the Glass Packaging Institute ("GPI"), a trade associa- 
tion of the container glass industry which supports the retention 
of the fairness doctrine, 118 recounts its difficulties in placing 
advertisements on ballot issues: 

When various coalitions of which GPI was a member have sought to buy 
broadcast time for the presentation of views on ballot initiatives, many 
broadcasters have refused to consider their proposals. This refusal 
generally was occasioned not by normal market forces or broadcaster bias, 
but by broadcaster's unwillingness to assume the financial cost of 
providing free response time, as required by Cullman. In other instances, 
the coalitions' requests were met not by a broadcaster refusal to sell time, 
but, instead, by a rate purposely inflated to cover the anticipated cost of 
free response time being demanded by the coalitions' opponents on the 
ballot proposals. The result of these factors was that the coalitions found 



113 See, e.g., FEF Comments, supra n.83 at 64-65. 

114 CBS Comments, supra n.83 at 77, n.*. 

115 1983 Hearings, supra n.84 at 224. 

117 NAB Comments, supra n.79, App. Vol., App. D at 8 (Example No. 7). 

118 The Glass Packaging Institute, however, has urged the Commission to modify 
the Cullman Doctrine. "Comments of the Glass Packaging Institute" at 13. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 175 1986 



176 Federal Communications Commission Reports 

themselves unable to purchase broadcast time within which to address 
ballot issues, either because of a broadcast licensee's refusal to sell time, or 
because the time costs were prohibitive, both obstacles being the result of 
the broadcasters' fear of resulting Cullman obligations. 119 

Similarly, in its comments, the National Rifle Association of 
America ("NRA"), an organization which has also urged the 
Commission to retain the fairness doctrine, documented its 
difficulties in placing advertisements on ballot propositions. Like 
the GPI, the NRA attributed the reluctance of broadcasters to 
accept these advertisements on the fact that their acceptance 
would subject broadcasters to the responsive requirements of the 
fairness doctrine. 120 

49. The most compelling evidence of the existence of a "chilling 
effect" with respect to ballot advertising is presented in the 
Comments of the Public Media Center ("PMC"), an organization 
which, as noted above, 121 is actively involved in prosecuting 
complaints under the fairness doctrine. In its Comments, PMC 
vividly illustrates the manner in which a complainant can 
successfully pressure broadcasters into refusing to sell advertising 
on ballot issues. For example, PMC recounts the tactics of a 
pro-bottle bill coalition as follows: 

Ads opposing the beverage deposit — sponsored by an industry front 
group ... hit the air in early August. Within ten days, [the pro-bottle bill 
coalition] sent a letter to all 500 California stations asking for a 2 to 1 



119 Id. at 11-12. In Cullman Broadcasting Co., 40 FCC 576 (1963), we stated that: 

where the licensee has chosen to broadcast a sponsored program which for 
the first time presents one side of a controversial issue, has not presented (or 
does not plan to present) contrasting viewpoints in other programming, and 
has been unable to obtain paid sponsorship for the appropriate presentation 
of the opposing viewpoint or viewpoints, he cannot reject a presentation 
otherwise suitable to the licensee — and thus leave the public uninformed — 
on the ground that he cannot obtain paid sponsorship for that presentation. 

Id. at 577 (emphasis in original). 

120 In its Comments, the NRA stated that: 

In attempting to address controversial issues, including ballot propo- 
sitions affecting the Second Amendment, ad hoc organizations formed by 
local firearms owners and other citizens often have been faced with a 
broadcast licensee who has elected to exercise its right to refuse all advocacy 
advertising. Invariably, this refusal is based ... on an unwillingness of the 
broadcast licensee to risk the imposition of the financial penalty inherent in 
the Cullman obligation to invade its limited stock of commercial time in order 
to provide free response time to opponents on the issue. 

"Comments of the National Rifle Association of America" at 32-33. 

121 See n.73, supra. 

102 RC.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 176 1986 



Fairness Doctrine 177 

ratio in free spot time. [The coalition] urged broadcasters to refuse to sell 
time and therefore avoid a fairness situation at all 122 

The majority of the California stations followed the coalition's 
exortation. Less than one-third of the stations contacted by the 
coalition sold ballot advertising to the industry group. 123 

50. Similarly, PMC describes the successful invocation of the 
fairness doctrine by anti-smoking group in order to pressure 
broadcasters into refusing to sell advertising time to their 
opponents. PMC recounts that the anti-smoking group: 

. . . mailed "pre-emptive" letters to every local broadcast station, remark- 
ing on the upcoming vote and asking to be notified as soon as the tobacco 
industry bought airtime .... [TJen Miami stations, seeking to avoid [the 
group's] predictable demands, simply refused to sell time to the industry 
front. 124 

As a consequence, the public was denied information on a matter 
of important local concern. 

51. In addition to political advertisements, the record reflects 
that the onerous requirements associated with the fairness 
doctrine have resulted in the widespread practice of many 
broadcasters to refuse to air any public issue advertisements. For 
example, one broadcaster employed by a large television station 
states that his station and six others under common ownership 
have a "company policy" not to accept issue advertising. 125 A 
number of trade associations have also documented that broad- 
cast licensees, inhibited by the requirements of the fairness 
doctrine, have refused to air issue-oriented advertisements. The 
comments of the American Association of Advertising Agencies 
are illustrative: 

Many large corporations, consistent with a special expertise or interest in 
a specific public policy or issue, occasionally approach the broadcast media 
seeking to purchase air time for dissemination of public interest 
advertisements .... [Broadcast licensees have regularly rejected offers for 
such advertisements — not because of some defect in the ads them- 
selves, but rather because the Fairness Doctrine requires broadcasters 



122 PMC Comments, supra n.73 at 28 (emphasis added). 

12 3 See id. 

124 Id. at 16-17 (emphasis added). 

125 NAB Comments, supra n.79, App. Vol, App. D at 11 (Example No. 10). 
Similarly, as noted by the United States Court of Appeals in Maier v. FCC, 735 
F.2d 220, 234 n.19 (7th Cir. 1984), WTMJ-TV, a broadcast station in 
Milwaukee, Wisconsin has a "station policy that *[t]ime is not sold for the 
discussion of controversial issues.' " 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 177 1986 



178 Federal Communications Commission Reports 

carrying paid public interest advertisements to carry opposing viewpoints 
as well — even if no one steps forward to pay for them. 126 

Similarly, the Association of National Advertisers, a trade 
association composed of companies which employ advertising in 
thQ marketing of goods and services to the public, documents that 
its members wish to present their views on issues of public 
controversy but are often "frustrated by rejections at the hands 
of broadcast licensees who claim that to accept such paid 
communications will subject them to onerous balancing obliga- 
tions because of the Fairness Doctrine . . . . " 127 

52. The inhibiting effect of the fairness doctrine on the presen- 
tation of issue-oriented advertising is vividly illustrated in the 
comments of Mobil Corporation, another party who actively 
supports the retention of the fairness doctrine. Relying on its 
"considerable experience" in this area, Mobil recounts that it has 
been thwarted in its efforts to provide the public with its side of 
public issue as a result of "the broadcasters' outright refusal to 
permit the presentation of conflicting views on particular issues of 
public importance." 128 In stark contrast to this experience, Mobil 
states that the "print media has been willing to sell space for 
Mobil to present its views, and has never disagreed with the 
substance or placement of materials . . . . " 129 While Mobil itself 
does not attribute its difference in treatment to the regulatory 
burdens associated with complying with the requirements of the 
fairness doctrine, evidence in the record, which we find persuasive, 
indicates that the refusal of many broadcasters to air Mobil's 
advertisements was in fact based upon a concern that the 
commercial would trigger requests for the broadcast of responsive 
viewpoints under the fairness doctrine. 130 

53. Further evidence of the demonstrable inhibiting effect of 
the fairness doctrine is documented by our own administrative 
decisions. Except in extremely rare situations, a licensee is not 
challenged under the fairness doctrine for a failure to air a specific 



126 * 'Comments of the American Association of Advertising Agencies in Further- 
ance of the Commission's Inquiry to Support Repeal of the Fairness Doctrine'* 
at 3-4 (emphasis in original). See also "Comments of the American Advertising 
Federation"; "Comments of the Association of National Advertisers Inc." 
[hereinafter cited as "ANA Comments"]. See also NAB Comments, supra n.79, 
App. Vol., App. D at 30-31 (Example Nos. 23). 

127 ANA Comments, supra n.126 at 2. 

128 "Comments of Mobil Corporation," at 3-4 [hereinafter cited as "Mobil Corp, 
Comments"]. 

129 Id. at 4. 

130 NAB Comments, supra n.79, App. Vol., App. D at 60 (Example No, 40). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 178 1986 



Fairness Doctrine 179 

controversial issue of importance to the community; 131 rather, the 
typical fairness doctrine case addresses whether the licensee 
provided overall balanced coverage with respect to those issues 
which, in its discretion, it chose to present. As a consequence, in 

those instances in which we determined that the licensee failed to 

i 

broadcast a sufficient amount of responsive prbgramming which is 
mandated under the second prong of the fairness doctrine, we 
have imposed sanctions — including the ultimate penalty of 
non-renewal — upon broadcasters who have actually provided 
large amounts of controversial issue programming. With respect 
to these broadcasters, the anomalous result of enforcing the 
second prong of the fairness doctrine is to inhibit or silence 
licensees who make significant contributions to the marketplace of 
ideas. 132 

54. Brandy wine-Main Line Radio Inc., 133 a case involving the 
license renewal of WXUR, is a vivid illustration of the way in 
which application of the fairness doctrine has operated to stifle 
controversial issue programming. The uncontroverted evidence of 
that case demonstrated that "controversial issue programming 
was a substantial part of WXUR's total programming" 134 during 



131 See, e.g., Brent Buell, 97 FCC 2d 55, 57 (1984). As we stated in our 1974 
Fairness Report, "the usual fairness complaint does not involve an allegation 
that the licensee has not devoted sufficient time to the discussion of public 
issues." 1974 Fairness Report, 48 FCC 2d at 10. Indeed, on only one occasion 
have we determined that the licensee acted unreasonably in failing to cover a 
specific controversial issue of paramount importance to the community. 
Representative Patsy Mink, 59 FCC 2d 987 (1976). 

132 In making this assertion, we do not — and cannot — pass judgment on the 
wisdom or propriety of the viewpoints expressed. Indeed, the Commission may 
conclude that a licensee makes a significant contribution to the marketplace of 
ideas, even though the Commission— or a majority of the public — may disagree 
or even abhor the opinions expressed by the licensee. As the United States 
Supreme Court has stated, "it is a central tenet of the First Amendment that 
the government must remain neutral in the marketplace of ideas." FCC v. 
Pacifica Foundation, 438 U.S. 726, 745-46 (1978). The presentation of diverse 
viewpoints on controversial issues of public importance enables members of the 
public, rather than any governmental entity, to accept or reject the different 
attitudes and viewpoints; the exposure to the marketplace of ideas, therefore, 
provides the public with the means to understand the vital issues of the day. 

133 Brandywine-Main Line Radio Inc., supra n.75. 

134 Id., 24 FCC 2d at 22. Indeed, the Initial Decision noted that: 

In the broad perspective of this record, it is almost inconceivable that any 
station could have broadcast more variegated opinions upon so many issues 
than WXUR .... The multitudinous seas of opinion were navigated in what 
seemed to be a breathtaking course and this, indeed, was a main cause of the 
station's difficulties— not that it was narrowly partisan but that it sought 

and received too much controversy. 

* * * * 

There is a strange irony in the fact that WXUR has attempted to do 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 179 1986 



180 Federal Communications Commission Reports 

its term of license. The Commission also found that the station 
did provide some coverage of opposing viewpoints, but the 
Commission determined that the station did not satisfy the 
requirement of overall balance in its public issue programming, as 
"those holding viewpoints contrary to those of the moderator 
were forced to give their views in an antagonistic setting." 133 As 
a consequence, the Commission refused to renew the license of 
WXUR. 

55. The Commission's decision in that case had the direct result 
of reducing the amount of controversial issue programming 
available to the public. Chief Judge David Bazelon, in dissent to 
the Court of Appeals' affirmance, stated that WXUR was: 

a radio station devoted to speaking out and stirring debate on controver- 
sial issues. The station . . . propogate[d] a viewpoint which was not being 
heard in the greater Philadelphia area. The record is clear that through its 
interview and call-in shows it did offer a variety of opinions on a broad 
range of public issues, and that it never refused to lend its broadcast 
facilities to spokesman of conflicting viewpoints .... 

The Commission's . . . decision, has removed WXUR from the air. This 
has deprived the listening public not only of a viewpoint but also of robust 
debate on innumerable controversial issues. It is beyond dispute that the 
public has lost access to information and ideas. This is not a loss to be 
taken lightly, however unpopular or disruptive we might judge these ideas 
to be. 136 

56. A number of parties characterize the statements made by 
broadcasters that document the existence of "chilling effect" as 
mere "self-serving" utterances to which the Commission should 
accord little probative value. 137 Because these broadcasters at 
most merely recount their "personal beliefs about the effect of the 
Doctrine on programming practices," 138 these parties argue that 
their statements do not substantiate the proposition that the 
overall effect of the fairness doctrine is to inhibit the presentation 



what broadcasters have been exorted to do and that is to offer vigorous 
discussion of controversial issues. The station has, in fact, presented such 
discussion in about the same degree that most stations offer entertainment, 

Brandywine-Main Line Radio, Inc., 24 FCC 2d 42, 130-131 (1970), rev'd, 24 

FCC 2d 18 (1970), recon. denied, 27 FCC 2d 565 (1971), affd, 473 F,2d 16 (D. 

C. Cir. 1972), cert denied, 412 U.S. 922 (1973). (Initial Decision of Hearing 

Examiner H. Gifford Irion) (emphasis added), 
!35 Brandy wine-Main Line Radio, Inc., 24 FCC 2d at 23. 
^ Brandy wine-Main Line Radio, Inc. v. FCC, 473 F.2d 16, 70 (D.C Cir. 1972), 

cert denied, 412 U.S. 922 (1973) (Bazelon, C. J. dissenting) (emphasis omitted). 
137 See, e.g., "Reply Comments of the American Civil Liberties Union' ' at 9 

[hereinafter cited as "ACLU Reply Comments"]; MAP/TRAC Reply Comments, 

supra n.105 at 36. 
wtSee ACLU Reply Comments, supra n.137 at 10. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 180 1986 



Fairness Doctrine 181 

of controversial issues of public importance. 

57. We disagree. Because the existence of a "chilling effect" is 
a subjective perception, the statements of broadcasters who are 
personally subject to its requirements on a daily basis are able to 
present some of the best evidence on whether or not the doctrine, 
in operation, inhibits the presentation of controversial issues of 
public importance. We also believe that this evidence is more 
probative than the statements of persons who, by necessity, have 
to second-guess the broadcaster's state of mind. 

58. In addition, we reject the proposition that the evidentiary 
value of these statements is undercut by their alleged "self- 
serving" nature. A statement by a broadcaster that he or she is 
inhibited from presenting controversial issues of public impor- 
tance is, in a very real sense, an admission against interest. Such 
a statement may constitute an acknowledgement that the broad- 
caster may not be abiding by the highest standards of profes- 
sional journalism, thereby potentially diminishing his or her 
standing in the profession. In addition, it could create potential 
regulatory problems for the broadcaster. 139 Further, while it is 
true that these statements evidencing a "chiling effect" are 
"self-serving" in the sense that the broadcasters who made them 
have a direct interest in the outcome of this proceeding, the 
identical charge could be leveled against every statement of every 
commenting party. We have never held that the evidence of 
interested parties lack probity; indeed, were we to adopt such a 
rule it would be virtually impossible for us to come to any 
conclusions about any issue raised in this proceeding. 

59. Some parties to this proceeding attempt to support the 
absence of a "chilling effect" by asserting that most broadcasters 
either support the doctrine or at a minimum deny that it inhibits 
their speech. 140 We find this argument to be unpersuasive. 
Virtually all broadcasters or their trade associations which 
commented on this issue took the position that the fairness 
doctrine operates as a significant deterrent to the presentation of 
controversial issues of public importance. 141 There was only one 



139 The United States Supreme Court has stated that "if present licensees should 
suddenly prove timorous [in presenting controversial issues of public impor- 
tance], the Commission is not powerless [to redress the situation]/' Red Lion 
Broadcasting Co. v. FCC, 395 U.S. at 391, In light of this judicial warning, a 
licensee may believe it imprudent to acknowledge that it has in fact been 
timorous, thereby inviting potential regulatory litigation. 

140 See, e.g., BCFM Reply Comments, supra n.91 at 50-54; PMC Comments, supra 
n.73 at 7-9. 

141 See, e.g. "Comments [of National Radio Broadcasters Association] on Reassess- 
ment of the Fairness Doctrine/' at 8; NAB Comments, supra n.79, App. Vol., 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 181 1986 



182 Federal Communications Commission Reports 

broadcaster on the record of this proceeding which voiced its 
support for the fairness doctrine as a matter of policy. 142 
Moreover, the second-hand accounts of support of the doctrine by 
broadcasters that are contained in the pleadings of some propo- 
nents of the doctrine are directly contradicted by the statements 
of the broadcasters themselves in this proceeding. 143 Furthermore, 
we, do not believe that the isolated representations of some 
broadcasters to the effect that the doctrine does not have any 
effect on the type, frequency or duration of the controversial 
viewpoints they air are probative of an absence of chilling effect 
within the industry as a whole; the fact that some broadcasters 
may not be inhibited in the presentation of controversial issues of 
public importance does not prove that broadcasters in general are 
similarly uninhibited. 

60. Some parties assert that any inhibiting effect of the 
fairness doctrine is not attributable to the actual requirements of 
the doctrine itself but rather to the misperception of broadcasters 
as to their precise obligations under the doctrine. These comment- 
ers contend that broadcasters are not inhibited by the fear of 
incurring fairness doctrine obligations unless regulatory require- 
ments in fact attach to their programming. 144 However, broad- 



App. D; "Joint Comments of Radio-Television News Directors Association" at 
60-65; CBS Comments, supra n.83 at 70-98; NBC Comments, supra n.86 at 
9-52; Tribune Comments, supra n,78 at 8. 

142 "Comments of Group W [Westinghouse Broadcasting & Cable Co.]" at 6-7 
[hereinafter cited as "Group W Comments"]. 

143 p or example, in its Reply Comments, BCFM contends that it "is not the case" 
that "a majority of licencees, or at least the major networks, . . . oppose the 
[fairness] doctrine." BCFM Reply Comments, supra n.91 at 50. It states further 
that "NBC, CBS and ABC do not share NAB's view that the doctrine inhibits 
their speech.' 1 Id. at 50-51. Based upon the pleadings submitted by broadcast- 
ers in this proceeding, these representations appear erroneous. As noted above, 
the record reflects that the overwhelming majority of broadcasters participating 
in this inquiry oppose retention of the fairness doctrine. Moreover, with respect 
to the networks, NBC and CBS filed lengthy comments in this proceeding 
urging the Commission to eliminate the doctrine; one reason that these parties 
took this position was that they perceived the doctrine to have a chilling effect 
upon the speech of broadcasters. NBC Comments, supra n.86 at 8-9; CBS 
Comments, supra n.83 at 70-77. Furthermore, expressing the view that the 
total repeal of the fairness doctrine is a long term goal, ABC urged the 
Commission to adopt proposals for "major overhaul of the fairness doctrine" to 
"further enhance the First Amendment rights of broadcast journalists. "Reply 
Comments of American Broadcasting Companies, Inc." at 5- Indeed, BCFM 
actually characterizes ABC's proposals as designed "to exempt broadcasters 
from every meaningful obligation under the fairness doctrine . . . . " BCFM 
Reply Comments, supra n.91 at 74. It is clear, therefore, that the statements of 
the networks in the record of this proceeding are directly at odds with BCFM's 
representation that these parties support the fairness doctrine. 

144 See, e.g., BCFM Reply Comments, supra n.91 at 66-69; MAP/TRAC Reply 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 182 1986 



Fairness Doctrine 183 

casters are not lawyers, A broadcaster may be uncertain as to the 
precise boundaries of our detailed and complex regulatory 
scheme 145 or may be uncertain as to whether he or she will be 
able to convince us, in the course of fairness doctrine litigation, 
that the station's overall programming complies with our regula- 
tory requirements. As a consequence, a broadcaster, in order to 
avoid even the possibility of litigation, may be deterred from 
airing material even though the Commission, after hearing all the 
evidence, would have concluded that the program did not trigger 
fairness doctrine obligations. 146 Indeed, the uncertainty as to 
whether or not a broadcast contains information which rises to 
the level of a controversial issue of public importance may itself 
have an inhibiting effect. 147 In any event, it is the fact of 
deterrence — not whether or not the Commission, in making an 



Comments, supra n.105 at 38-40. 

145 The regulatory requirements associated with the fairness doctrine are not as 
clear and unambiguous as the parties making this argument would have us 
believe. As noted in n.105 supra, BCFM argued that it was patently absurd for 
a broadcaster to decide not to air a series on religious cults on the basis that 
the series would trigger fairness doctrine obligations because religious matters 
are clearly beyond the scope of the fairness doctrine. Yet, contrary to BCFM's 
assertions, we have affirmatively stated that matters of religious doctrine, in 
appropriate circumstances, could precipitate fairness doctrine obligations. See 
n.105, supra; Brandywine Main-Line Radio, Inc., 27 FCC 2d at 570. 

146 As the United State Supreme Court has stated: 

The man who knows that he must bring forth proof and persuade another of 
the lawfulness of his conduct necessarily must steer far wider of the unlawful 
zone .... This is especially to be feared when the complexity of the proofs 
and the generality of the standards applied provide but shifting sands on 
which the litigant must maintain his position. 

Speiser v. Randall, 357 U.S. 513, 526 (1958) (citation omitted). See also New 
York Times Co. v. Sullivan, 376 U.S. at 279. See generally Central Intelligence 
Agency against American Broadcasting Companies, Inc., No. 1862 (released 
Jan. 10, 1985), application for review denied, FCC No. 85-374 (adopted July 12, 
1985). 

147 We have traditionally recognized that: 

One of the most difficult problems involved in the administration of 
the fairness doctrine is the determination of the specific issue or issues raised 
by a particular program. Those would seem to be a simple task, but in many 
cases it is not. 

1974 Fairness Report, 48 FCC 2d at 12 (emphasis in original). As Chief Judge J. 
Skelly Wright of the United States Court of Appeals stated, "issue ambiguity 
in the fairness doctrine context is a certainty to lessen the free flow of 
information favored by the First Amendment, and is therefore unacceptable. " 
American Security Council Education Foundation v. FCC, 607 F.2d at 458 (J. 
Skelly Wright, C. J. concurring). In enforcing the fairness doctrine, we are 
required, inter alia, to determine whether or not issues are "publicly impor- 
tant," "controversial," etc. Because our experience indicates that identifying 
and characterizing issues is inherently subjective, issue ambiguity under the 
fairness doctrine scheme appears unavoidable. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 183 1986 



184 Federal Communications Commission Reports 

adjudicatory determination on the substantive law would in fact 
find a fairness doctrine obligation — which is relevant in ascertain- 
ing the existence of a chilling effect. As the United States Court 
of Appeals stated: 

I In seeking to identify the chilling effect . . , . pur ultimate concern is not so 
much with what government officials will actually do, but with how 
reasonable broadcasters will perceive regulation, and with the likelihood 
they will censor themselves to avoid official pressure and regulation* 148 

61. A number of commenters argue that there is no inhibiting 
effect because the Commission has been careful to administer the 
fairness doctrine in a manner which attenuates the regulatory 
burdens on broadcasters. 149 It is true that we have enforced the 
doctrine with a view toward minimizing editorial intrusion on 
broadcast journalists. 150 But the record in this proceeding has 
convinced us that the fairness doctrine generally operates to 
inhibit the presentation of controversial issues of public impor- 
tance on the airwaves. Because the inhibiting effect is an 
inevitable result of the substantive rule itself, even carefully 
crafted implementing mechanisms have not been successful in 
preventing the fairness doctrine from operating to deter broad- 
casters from airing important and controversial issues. The mere 
fact that a more intrusive implementing approach might result in 
even greater restrictions on the editorial discretion of broadcast- 



148 Community-Service Broadcasting of Mid-America, Inc. v. FCC, 593 F.2d at 
1116. 

149 See, e.g., Mobil Corp. Comments supra n.128 at 25-30; MAP/TRAC Comments 
supra n.50 at 128-133. 

iso J974 Fairness Report, supra n.3. Historically we have been concerned over the 
dangerous potential of the fairness doctrine to chill the speech of broadcasters. 
Consequently, in enforcing the doctrine we have adopted a number of 
procedural rules in an attempt to attenuate the intrusion on the editorial 
freedom of broadcast journalists. Id. For example, the Commission, as a 
condition precedent to filing a fairness doctrine complaint, requires a viewer or 
listener to first present his or her grievance to the broadcaster. See, e.g., 
American Security Council Education Foundation v. FCC, 607 F.2d at 445. We 
have also required a person filing a fairness doctrine complaint to establish a 
prima facie case. See, e.g., Memorandum Opinion and Order on Reconsideration 
of the Fairness Doctrine Report in Docket No. 19260 58 FCC 2d 691, 696 
(1976), affd sub nom. National Citizens Committee for Broadcasting v. FCC, 
567 F.2d 1095 (D.C. Cir. 1977), cert, denied, 436 U.S. 926 (1978). American 
Security Council Education Foundation v. FCC 607 F.2d at 447. In addition, in 
implementing the doctrine, we have traditionally accorded a significant amount 
of discretion to broadcasters in the selection of the issues, the manner of 
coverage, the appropriate spokespersons, and the amount of time devoted to a 
specific matter. See 1974 Fairness Report, 48 FCC 2d at 16. See also 
Applicability of the Fairness Doctrine in the Handling of Controversial Issues 
of Public Importance, 40 FCC 598 (1964). 

102 F.C.G 2d 



HeinOnline — 102 Book 1 F.C.C.2d 184 1986 



Fairness Doctrine 185 

ers does not negate the existence of a demonstrable "chilling 
effect" under the present regulatory scheme. 

62. Furthermore, noting that the Commission only forwards a 
small amount of complaints it receives to broadcasters for 
justification, several fairness doctrine proponents assert that the 
Commission fails to enforce its rules and, consequently, broadcast- 
ers are not reasonably deterred from airing controversial issues of 
public importance by operation of the fairness doctrine. We 
disagree. While it is true that we do not often determine, after 
review of a fairness doctrine complaint, that it is appropriate for 
us to request the broadcaster to explain how its programming 
comports with the fairness doctrine, 151 this fact merely demon- 
strates that the vast majority of fairness doctrine complaints we 
receive lack colorable validity. Instead of the improper action 
ascribed by some commenters, we believe that the paucity of 
actionable fairness doctrine complaints is probative of the fact 
that most licensees comply with the fairness doctrine. 

63. In addition, several supporters of the retention of the 
fairness doctrine argue that the record in this proceeding provides 
inadequate support of a "chilling effect" on the grounds that the 
NAB, in the appendix to its comments, "merely" provided 45 
examples of the way in which the fairness doctrine chills 
broadcasters' speech. These parties contend that the allegedly 
small number of examples are "wholly insufficient to suggest that 
the fairness doctrine has any inherent chilling effect on broadcast- 



ers. 



'152 



64. We find that this contention lacks merit for several reasons. 
First, the evidentiary support for our conclusion concerning the 
existence of a "chilling effect" is based, inter alia, on the 
pleadings of numerous parties, including individual broadcasters, 
corporations, industry groups, trade associations, non-profit corpo- 
rations as well as the comments of the NAB. Second, even if the 
evidence of record were limited to the 45 examples contained in 
the appendix to NAB's comments — which it is not — we do not 
believe that 45 examples of chill can be discounted on the grounds 
that they are merely isolated incidents that are unrepresentative 
of the industry as a whole. This is particularly true in light of the 
fact that, as noted above, an admission by a broadcaster that the 



151 See, e.g., American Security Council Education Foundation v. FCC, 607 F-2d at 

447. 
152 MAP/TRAC Reply Comments, supra n.105 at 29. See also "Reply Comments of 

the United States Catholic Conference" at 8 [hereinafter cited as "USCC Reply 

Comments"]. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 185 1986 



186 Federal Communications Commission Reports 

fairness doctrine inhibits the presentation of controversial issues 
could be construed as involving a potential rule violation which 
broadcasters may be reluctant to acknowledge, especially in the 
record of the licensing regulatory agency. 153 

p5. In addition, several parties challenge some of NAB's 
examples on the grounds that they involve application of the 
personal attack or political editorializing rule. 154 Noting that these 
specific applications of the fairness doctrine are the subject of a 
separate rulemaking, 155 they assert that these examples lack 
evidentiary value as to the "chilling effect" of the general fairness 
doctrine. To the contrary, we believe that examples of a "chilling 
effect" which involve application of the personal attack and 
political editorializing components of the fairness doctrine con- 
tained in the comments of NAB and other parties are probative of 
the general proposition that intrusive content-based regulation 
like the fairness doctrine and its ancilliary doctrines inhibit the 
presentation of controversial issues of public importance on 
broadcast frequencies. 156 In any event, while these examples do 
provide evidentiary support regarding the inhibiting effect of the 



153 Contending that some of the examples cited by NAB are overly vague, 
anonymous, or otherwise fail to demonstrate that the fairness doctrine in 
actuality inhibits the presentation of controversial issues of public importance, 
certain parties argue that the Commission should accord little, if any, probative 
value to these examples. Contrary to this assertion, we believe that many of 
the examples contained in NAB's Comments provide substantial and convinc- 
ing proof of the existence of a "chilling effect" and that the examples set forth 
by NAB are not so vague as to lack probative value. While some of the sources 
are unnamed, we note that the examples set forth by anonymous sources are 
similar to those which are attributed to specific broadcasters. Moreover, as 
noted above at H 58 supra, there are legitimate reasons, unrelated to the 
probity of the representations, why some broadcasters may desire anonymity 
with respect to their statements that they were inhibited, by the fear of 
incurring fairness doctrine obligations, in their presentation of controversial 
issues of public importance. Furthermore, as noted in U 64 supra, our concern is 
with the evidence contained in the record as a whole rather than with whether 
each example described by NAB contains specific evidentiary documentation of 
a "chilling effect." 

^See, e.g., MAP/TRAC Reply Comments, supra n.105 at 30; BCFM Reply 
Comments, supra n.91 at 68-69; ACLU Reply Comments, supra n.137 at 10. 

*m Notice of Proposed Rule Making in Gen. Docket No. 83-484, FCC 83-218 
(released June 14, 1983). 

156 See, e.g., NAB Comments, supra n.79, App. Vol., App. D at 35-37, 40-41, 46 
and 62 (Example Nos. 26, 28, 31, and 42). See also "Comments of KIPR/95 
FM"; "Comments of KGRL 940-AM Radio"; CBS Comments, supra n.83 at 
77-78, n.*; FEF Comments, supra n.83 at 71-72, citing Freedom of Expression 
Act of 1983: Hearings Before the Senate Committee on Commerce, Science & 
Transportation, 98th Cong. 2d Sess. 125-126 (1984). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 186 1986 



Fairness Doctrine 187 

doctrine, our conclusion as to the existence of a "chilling effect" 
is in no way dependent upon these examples. 157 

66. Finally, in its Reply Comments, the Media Access Project 
and the Telecommunications Research and Action Center 
("MAP/TRAC") contend that many of the examples of "chilling 
effect" contained in the NAB's Comments are merely "recycled 
material" which is of little evidentiary value. In support of this 
contention, MAP/TRAC recount that a number of these examples 
have been the subject of published books and articles, Commis- 
sion proceedings or congressional testimony. With respect to the 
examples derived from the congressional hearings, MAP/TRAC 
assert that Congress, by rejecting or failing to enact legislation, 
found these examples to be unpersuasive. 

67. We disagree. In our own view, the probity of these 
examples is not diminished merely because they have been 
published, formed the factual basis of an administrative proceed- 
ing or presented to Congress. To the extent that any evidentiary 
relevance attaches to the fact that the contents of a pleading has 
formed the subject matter of testimony presented under oath to 
the Nation's lawmakers, this fact would appear to enhance rather 
than lessen its probative value. Furthermore, contrary to 
MAP/TRAC s suggestions, the mere fact that Congress chose not 
to enact legislation does not constitute an affirmative determina- 
tion on the part of the governing legislative body that the 
examples lack probity. 158 

68. In sum, we find that the evidence, derived from the record 
as a whole, leads us to conclude that the fairness doctrine chills 
speech. As a result of this finding alone we no longer believe that 
the fairness doctrine, as a matter of policy, furthers the public 
interest and we have substantial doubts that the fairness doctrine 
comports with the strictures of the First Amendment. Because 
the fairness doctrine inhibits the presentation of controversial and 
important issues, in operation, it actually disserves the purpose it 
was designed to achieve. In our view, an elimination of the 
doctrine would result in greater discussion of controversial and 
important public issues on broadcast facilities. While we believe 
that the existence of a "chilling effect is sufficient to support our 
policy conclusion, it is not the only basis upon which we make 



157 In this regard, we note that none of the evidence of record demonstrating the 
existence of a "chilling effect" that is described in this section involves an 
application of the personal attack rule or the political editorializing rule. 

158 MAP/TRAC Reply Comments, supra n.105 at 27-28. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 187 1986 



188 Federal Communications Commission Reports 

this determination. In the following sections we shall discuss 
other detriments attributable to the fairness doctrine. 

C The Administration of the Fairness Doctrine Operates to 
I Inhibit the Expression of Unorthodox Opinions 

69. While the fairness doctrine has the laudatory purpose of 
encouraging the presentation of diverse viewpoints, we fear that 
in operation it may have the paradoxical effect of actually 
inhibiting the expression of a wide spectrum of opinion on 
controversial issues of public importance. 159 In this regard, our 
concern is that the administration of the fairness doctrine has 
unintentionally resulted in stifling viewpoints which may be 
unorthodox, unpopular or unestablished. 

70. First, the requirement to present balanced programming 
under the second prong of the fairness doctrine is in itself a 
government regulation that inexorably favors orthodox view- 
points. 160 As we stated in our 1974 Fairness Report, it is only 
"major" 161 or "significant" 162 opinions which are within the scope 
of the regulatory obligation to provide contrasting viewpoints. As 
a consequence, the fairness doctrine makes a regulatory distinc- 
tion between two different categories of opinions: those which 
are "significant enough to warrant broadcast coverage [under the 
fairness doctrine]" 163 and opinions which do not rise to the level 

159 Governmental policy which has the effect of inhibiting the expression of 
specific points of view presents grave First Amendment concerns. As the 
United States Supreme Court has stated: 

the fact that society may find speech offensive is not a sufficient reason for 
suppressing it. Indeed, if it is the speaker's opinion that gives offense, that 
consequence is a reason for according it constitutional protection. 

FCC v, Pacifica Foundation, 438 U.S. at 745. 

160 Justice William Brennan has noted that the fairness doctrine may operate to 
disfavor viewpoints outside the mainstream of public opinion; 

Under the Fairness Doctrine, a broadcaster is required to present only 
"representative community views and voices on controversial issues" of 
public importance. Thus, by definition, the Fairness Doctrine tends to 
perpetuate coverage of those "views and voices" that are already established, 
while failing to provide for exposure to the public to those "views and 
voices" that are novel, unorthodox or unrepresentative of prevailing opinion. 

Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 
U.S. 190 (1973), quoting Democratic National Committee, 25 FCC 2d 216, 222 
(1970) (Brennan, J., dissenting) (emphasis in original). 
161 1974 Fairness Report, 48 FCC 2d at 15. 

162 Id. 

163 id. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 188 1986 



Fairness Doctrine 189 

of a major viewpoint of sufficient public importance 164 that 
triggers responsive programming obligations. While the broad- 
caster in the first instance is responsible for evaluating the 
"viewpoints and shades of opinion which are to be presented/* 165 
we are obligated to review the reasonableness of the broadcaster's 
evaluation. As a consequence, the fairness doctrine in operation 
inextricably involves the Commission in the dangerous task of 
evaluating the merits of particular viewpoints. This evaluation 
has serious First Amendment ramifications. As the Supreme 
Court has stated: 

If there is any fixed star in our constitutional constellation, it is that no 
official, high or petty, can prescribe what shall be orthodox in politics, 
nationalism, religion, or other matters of opinion. . . , 166 

71. Second, as Chief Judge David Bazelon has stated, our own 
administrative enforcement of the doctrine provides some support 
for the contention that some ' 'controversial viewpoint [s] [are] 
being screened out in favor of the dreary blandness of a more 
acceptable opinion." 167 Broadcasters who have been denied or 
threatened with a denial of the renewal of their licenses due to 
fairness doctrine violations have generally not been those which 
have provided only minimal coverage of controversial and impor- 
tant public issues. Indeed, some licensees that we have not 
renewed or threatened with non-renewal have presented controver- 
sial issue programming far in excess of that aired by the typical 
licensee. 168 In a number of situations it was the licenses of 
broadcasters who aired opinions which many in society found to 
be abhorrent or extreme which were placed in jeopardy due to 
allegations of fairness doctrine violations. 169 In conclusion, we are 



^Id. 

!65 Id. 

166 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642 (1943). 
167 Brandywine-Main Line Radio, Inc. v. FCC, 473 F.2d at 78 (Bazelon, C.J. 
dissenting). 

168 A discussion of our decision not to renew the license of WXUR on the basis, 
inter alia, of failing to comply with the fairness doctrine is described in detail 
at UK 54-55, supra. As noted below, in the name of the fairness doctrine we 
silenced WXUR, a station which had provided an enormous amount of 
controversial issue programming during its term of license. Similarly, in Capitol 
Broadcasting Co., 2 RR 2d 1104 (1964), the Commission deferred action on the 
renewal applications of WRAL during a pendency of an inquiry into the 
station's compliance with the fairness doctrine notwithstanding the fact that 
the station's editorials, voiced by its Vice-President, Jesse Helms, presented 
views "on a great number of controversial issues of national and regional 
importance." Id. at 1106 (emphasis added). 

169 See, e.g., Lamar Life Broadcasting Co., 38 FCC 1143 (1965), rev'd sub nom. 
Office of Communication of United Church of Christ v. FCC, 359 F.2d 994 (D.C. 
Cir. 1966) (FCC refusal to grant a full term license to a station which espoused 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 189 1986 



190 Federal Communications Commission Reports 

extremely concerned over the potential of the fairness doctrine, in 
operation, to interject the government, even unintentionally, into 
the position of favoring one type of opinion over another. 170 To 
the extent that the doctrine has this effect it both disserves the 
interest of the public in an unencumbered marketplace of ideas 
and , contravenes the fundamental purposes of the First Amend- 
ment* 

D. In Operation the Fairness Doctrine Places the Government into 
the Intrusive and Constitutionally Disfavored Role of Scrutinizing 

Program Content 

72. Although we have traditionally attempted to minimize our 
role in evaluating program content in administering the fairness 
doctrine, 171 the doctrine has the inexorable effect of interjecting 
the Commission into the editorial decisionmaking process. 172 In 
evaluating whether or not a broadcaster has met his or her 
balanced programming obligations under the fairness doctrine, 173 



racially segregationist viewpoints); Brandy wine-Main Line Radio, Inc., supra 
n.75 (FCC refusal to grant a license renewal to an evangelist station; the 
Hearing Examiner in Brandywine stated that the licensee's "style of presenta- 
tion over the air — sometimes so racy as to make the gorge rise — was not 
what men of refined tastes would deem expedient. . . . Brandywine-Main Line 
Radio, Inc., 24 FCC 2d at 130). See also Trinity Methodist Church, South v. 
Federal Radio Commission, 62 F.2d 850, 851 (D.C. Cir.), cert denied, 284 U.S. 
685 (1932) (Federal Radio Commission denied license renewal in a situation in 
which "the station had been used to attack a religious organization . . . [and 
where] the broadcasts [aired by the licensee] were sensational rather than 
instructive . . . . ") 

170 In its Comments, the Office of Communication of the United Church of 
Christ — a party which intervened in opposition of a grant of renewal in the 
Lamar Life case — argues that in the 1960s extreme right wing broadcasters 
with odious racial and religious views gained an inordinate amount of influence 
in large sections of the country. Observing that these broadcasters were subject 
to fairness doctrine challenges, the United Church of Christ states that "[i]f the 
doctrine was successfully used to moderate abuses of that period, it served its 
purpose. . . ." "Comments of the Office of Communication of the United Church 
of Christ, the Unitarian Universalist Association, the Communication Commis- 
sion of the National Council of the Churches of Christ in the U.S.A., Everett C. 
Parker and Al Swift" at 51 [hereinafter referred to as "UCC Comments"]. In 
our view, use of the fairness doctrine to suppress any point of view, however 
abhorrent, contravenes the purpose of the doctrine and raises serious constitu- 
tional implications. 

171 See, e.g., 1974 Fairness Report at 8. See American Security Council Education 
Foundation v. FCC, 607 F.2d at 445. 

172 See Notice, supra n.l at 11 71. 

173 Both prongs of the fairness doctrine have the potential to interject the 
government into the decisionmaking process as to the content of programming. 
The first prong of the fairness doctrine sanctions governmental intrusion by 
enabling the Commission to prescribe directly the coverage of a specific 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 190 1986 



Fairness Doctrine 191 

we are obligated to determine whether or not the broadcaster 
made a reasonable determination as to whether or not the 
programming presented controversial issues of public importance, 
and if so, we must assess whether or not the broadcaster provided 
reasonable opportunities for the presentation of contrasting view- 
points. In evaluating the adequacy of the responsive program- 
ming, we have had to draw conclusions as to the reasonableness 
of the selected program formats and spokespersons. 

73, Moreover, in making these assessments, we must necessar- 
ily take into account the amount of time in which a specific 
viewpoint was broadcast. Our staff often performs this task by 
mechanistically weighing the minutes and even the seconds of 
time devoted to each expression of opinion. 174 In addition, we 
must assess the frequency of the broadcast and the degree of 
audience exposure. Further, because the- opportunity to present 
responsive programming may lose its utility if the controversial 
issue of public importance triggering the obligation subsequently 
becomes moot, we must also make judgments as to the timeliness 
of the opportunity for the discussion of contrasting viewpoints. 
The minute and subjective scrutiny of program content resulting 
from the enforcement of the fairness doctrine is at odds with First 



controversial issue of public importance whether or not the broadcaster, in the 
exercise of his or her journalistic judgment, would choose to cover the issue. As 
noted supra at n.59, however, we impose affirmative programming obligations 
on broadcasters under the first part of the fairness doctrine only in very rare 
instances. Because it is the second prong of the doctrine that typically involves 
the government into the editorial decisionmaking process, this section will 
address the intrusion resulting from the enforcement of that prong of the 
doctrine. 
174 At the en banc hearing, James C. McKinney, Chief of the Mass Media Bureau, 
described the detailed scrutiny of program content that necessarily results from 
the enforcement of the fairness doctrine: 

[I]t might be interesting for you to know the process that we go through here 
at the agency at the lower staff level before the Commissioners get [a case] 
for final decision. We ... sit down with tape recordings [and] video tapes of 
. . . what has been broadcast on a specific station. We compare that to 
newspapers [and] other public statements that are made in the community. 
We try to make a decision as to whether the issue is controversial and 
whether it is of public importance in that community, which may be 2000 
miles away. . . . [W]hen it comes down to the final analysis, we take out stop 
watches and we start counting [the] seconds and minutes that are devoted to 
one issue compared to [the] seconds and minutes devoted to the other side of 
that issue. . . . [I]n the final analysis we start giving our judgment as what 
words mean in the context of what was said on the air. What was the twist 
that was given that specific statement, or that commercial advertisement? 
Was it really pro-nuclear power or was it pro some other associated issue? 

Hearings on the Fairness Doctrine; Panel IV (Statement of James C. 
McKinney) (February 8, 1985). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 191 1986 



192 Federal Communications Commission Reports 

Amendment principles. 175 For example, in Miami Herald, the 
United States Supreme Court expressed concern that a govern- 
mentally mandated right of reply statute applicable to newspapers 
constituted an unwarranted intrusion on the editorial freedoms of 
journalists 

because of its intrusion into the function of editors. A newspaper is more 
than a passive receptacle or conduit for news, comment and advertising. 
The choice of material to go into a newspaper, and the decisions made as 
to the limitations on the size and content of the paper, and treatment of 
public issues and public officials — whether fair or unfair — constitute the 
exercise of editorial control and judgment. It has yet to be demonstrated 
how governmental regulation of this crucial process can be exercised 
consistent with First Amendment guarantees of free press as they have 
evolved to this time. 176 

E. The Fairness Doctrine Creates the Opportunity For 
Intimidation of Broadcasters by Governmental Officials 

74. Notwithstanding our recent efforts to reduce unnecessary 
regulatory burdens on licensees, 177 the broadcast industry is one 
which is characterized by pervasive regulation. The fact of this 
pervasive regulatory authority, including the intrusive power over 
program content occasioned by the fairness doctrine, provides 
governmental officials with the dangerous opportunity to abuse 
their opposition of power in an attempt either to stifle opinion 
with which they disagree or to coerce broadcasters to favor 
particular viewpoints which further partisan political objectives. 
In this regard, Chief Judge Bazelton has observed that "the 
potential to subject the 'fairness' theory to political abuse is 



175 Justice William O. Douglas has expressed concern over the intrusive nature of 
the fairness doctrine: 

[T]he prospect of putting government in a position of control over publishers 

is to me an appalling one, even to the extent of the Fairness Doctrine. The 
struggle for liberty has been a struggle against Government. . . . 

The Court in today 's decision by endorsing the Fairness Doctrine 
sanctions a federal saddle on broadcast licensees that is agreeable to the 
traditions of nations that never have known freedom of press and that is 
tolerable in countries that do not have a written constitution containing 
prohibitions as absolute as those in the First Amendment. 

Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 
U.S. at 162-63 (Douglas J., concurring). 

17 <5 Miami Herald Publishing Co. v. Tornillo, 418 U.S. at 258. 

177 See, e.g., Report and Order in MM Docket No. 83-670, 98 FCC 2d 1076 (1984) 
[hereinafter cited as "Television Deregulation"]; Report and Order in MM 
Docket No. 84-19, FCC 84-156 (released May 9, 1984), 55 RR 2d 1389 (1984), 
recon. denied, FCC 85-225 (released May 8, 1985) (Elimination of Regional 
Concentration Rule) [hereinafter cited as "Regional Concentration"]. 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 192 1986 



Fairness Doctrine 193 

inherent in the operation of the doctrine," 178 

75. Political officials have not been loathe to criticize the 
manner in which broadcasters have aired controversial matters of 
public concern 179 and at times the criticism has been accompanied 
by overt pressure to influence the manner in which these issues 
are covered. 180 For example, a White House official during the 
Nixon Administration suggested to the President's Chief of Staff 
that the Administration respond to the alleged "unfair coverage" 
of the broadcast media by showing "favorites within the media," 
establishing "an official monitoring system through the FCC" and 
making "official complaints from the FCC." 181 The attempts to 
coerce broadcast journalists, moreover, have not been restricted to 
specific partisan viewpoints or politicians of a particular political 
party. As described in the Notice, a government official in another 
Administration was reported to state that the: 

massive strategy [of the Administration] was to use the fairness doctrine 
to challenge and harass the right-wing broadcasters and hope that the 
challenges would be so costly to them that they would be inhibited, and 
decide that it was too expensive to continue. 182 

We believe that the potential for the fairness doctrine to be 
abused in order to further partisan political purposes 183 has 



178 Brandywine-Main Line Radio, Inc. v. FCC, 473 F,2d at 78 n.62 (Bazelon, C. J., 
dissenting). 

179 Chief Judge Bazelon has stated that: 

In the past years, networks have come under repeated attacks from 
government spokesmen who did not like the way television reported a variety 
of hot public issues. These attacks did not focus on inaccuracies but on the 
"bias" or lack of "fairness" in the presentation. 

Id. at 78. 

180 An internal memorandum of one high level official of the Nixon Administration 
reveals that the President directed his staff on twenty-one occasions during a 
single thirty-day period to take "specific action relating to what could be 
considered unfair news coverage." Memorandum to H. R. Haldeman from Jeb 
S. Magruder, "The Shot-gun Versus the Rifle" (Oct. 17, 1969), reprinted in 
D. Bazelon, "FCC Regulation of the Telecommunciations Press," 1975 Duke 
L.J, 213, 247-51 (1975). 

isi Id. at 248, 

182 Notice, supra n.l at 78. 

183 Even where there has been no explicit threats by governmental officials, a mere 
perception that such abuse could occur may itself have an inhibiting effect. 
Broadcasters may be inhibited from airing viewpoints distasteful to those in 
power to avoid potential retaliation. As Chief Judge David Bazelon has 
observed: 

the tremendous stakes in the highly concentrated television medium make 
the networks particularly sensitive to the prevailing political winds at the 
FCC, in Congress, and in the White House. And the government has fostered 
network sensitivity to government wishes by making clear that the failure to 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 193 1986 



194 Federal Communications Commission Reports 

dangerous policy ramifications. As Justice William O. Douglas has 
stated: 

the regime of federal supervision under the Fairness Doctrine is contrary 
to our constitutional mandate and makes the broadcast licensee an easy 
victim of political pressures and reduces him to a timid or submissive 
segment of the press whose measure of the public interest will now be 
■ echoes of the dominant political voice that emerges after every election. 184 

76. Several parties contend that we should not be concerned 
that the fairness doctrine has the potential to be used as a vehicle 
for governmental officials to improperly affect the viewpoints 
aired over broadcast frequencies because such governmental 
officials have other means, such as the license renewal process 
and Internal Revenue Service audits, by which to improperly 
attempt to exert control over broadcasters. 185 We disagree. While 
the commenters are correct in their assertion that governmental 
abuse may be effectuated by other mechanisms, we do not have 
plenary power to safeguard against all types of potential govern- 
mental abuse. Certainly the mere fact that alternative means of 
intimidation may be available does not provide justification for 
use to blithely ignore the fact that the fairness doctrine provides 
the dangerous potential for governmental abuse. As Chief Judge 
Bazelon has stated, "[w]ithout the FCC lever to manipulate, we 
could hope that there would be less chance that the licensees 
would be forced to kowtow to the wishes of an incumbent 
politician." 186 

F. The Fairness Doctrine Imposes Unnecessary Economic Costs 
Upon Broadcasters and the Commission. 

11. In addition to the detriments described above, a further 
consequence of the fairness doctrine is the economic burdens 
imposed upon broadcasters and the Commission. As described 
above, the doctrine places significant economic costs upon a 
licensee. Such costs are incurred, for example, in negotiating with 
the public regarding responsive programming obligations, in 



respond to the government's concept of appropriate program content would 
jeopardize the all-valuable license. I am reminded by one broadcaster who 
observed: "We live or die ... by the FCC gun/' 

Bazelon, "First Amendment and the New Media," supra n.74 at 78 (ellipsis in 
original). 

184 Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 
U.S. at 164-65 (Douglas, J., dissenting). 

185 See, e.g., Geller/Lampert Comments, supra n.83 at 10-11 n.4. 

186 Bazelon, "FCC Regulation/' supra n.180 at 239. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 194 1986 



Fairness Doctrine 195 

defending fairness doctrine challenges in both administrative and 
judicial forums, in complying with the requirement to broadcast 
controversial issues of public importance, and in airing alternative 
viewpoints to these controversial issues. 187 

78. In addition to these economic burdens^ the administration 
and enforcement of the doctrine imposes regulatory costs upon 
the Commission. We receive thousands of inquiries and com- 
plaints concerning the fairness doctrine annually, 188 each of which 
requires an individualized evaluation or response by our staff. In 
the course of assessing the merits of a complaint, the Commis- 
sion's staff may seek further information from the Complainant. 
If it determines that the complainant has established a prima 
facie case, the staff may request justification from the licensee, 
thereby precipitating potentially costly administrative litigation, 
which, when terminated, is subject to judicial review, with its 
attendant costs. 189 Contrary to the position of some comment- 
ers, 190 therefore, we do not believe that the economic burdens 
incurred by the Commission in administering the fairness doctrine 
are de minimus. 

79. In evaluating the propriety of a policy, the costs associated 
with the rule are to be balanced against its benefits. As a 
consequence, the significant economic costs associated with the 
administration of the fairness doctrine are a necessary factor in a 
considered evaluation of whether or not retention of the fairness 
doctrine comports with the public interest. By this assertion we 
do not imply that the administrative costs standing alone would 
be sufficient to justify the elimination of the doctrine. To the 
contrary, these costs might be justified were it demonstrated that 
the doctrine increased the amount of controversial issue program- 
ming and that its retention was necessary to assure that the 
public had access to the marketplace of ideas. In a situation in 



187 See Section III, B.l, supra. 

188 ;p or example, in 1984 our staff received 6,787 inquiries and complaints 
regarding the fairness doctrine. 

189 The United States Court of Appeals has recently determined that a complain- 
ant whose fairness doctrine claim is denied by the Commission has the right to 
seek judicial review (Maier v. FCC, supra n.125) and it is possible that this 
determination will increase the amount of appellate litigation, with its 
attendant costs, involving the fairness doctrine. Because appellate fairness 
doctrine litigation necessarily entails the involvement of Commission, the 
United States Department of Justice and the courts, the administrative 
expenses of each of these governmental agencies must be taken into account in 
assessing the economic burdens associated with the fairness doctrine. 

190 See, e.g. 9 MAP/TRAC Comments, supra n.50 at 134; "Comments of the 
American Civil Liberties Union" at 11 [hereinafter cites as "ACLU Com- 
ments' ']. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 195 1986 



196 Federal Communications Commission Reports 

which there are no counterveilling justifications, however, we 
believe that even a moderate amount of administrative costs may 
consititute substantial justification for the elimination of regula- 
tion. For example, we have recently stated that regulatory costs 
are ai significant criterion in justifying repeal of a rule ''especially 
when the other factors considered indicate that the need for the 
rule has been effectively eliminated and that the rule imposes 
significant costs on both the public and the broadcast indus- 
try." 191 We find that these factors are applicable with respect to 
the fairness doctrine because, as discussed, the doctrine "chills" 
the broadcast of controversial issue programming and, as ex- 
plained below, is not required to assure that the public has access 
to diverse viewpoints. 

80. For the reasons set forth above, we find that the fairness 
doctrine, in operation, has the effect of inhibiting the presentation 
of controversial issues of public importance. We also believe that 
the doctrine operates to favor the expressions of orthodox 
viewpoints and to require unwarranted scrutiny by the Commis- 
sion into program content. In addition, we find it provides a 
vehicle by which governmental officials can intimidate broadcast- 
ers for partisan political purposes. Moreover, we determine that 
the doctrine, in operation, imposes significant economic costs 
upon the Commission and the broadcasting industry. As a 
consequence, on the basis of the record in this proceeding, we 
conclude that there are a number of significant detriments 
associated with the fairness doctrine. In the following section we 
will evaluate, in light of the current communications marketplace, 
whether or not there is any need for us to retain the doctrine. 

G. Need for the Fairness Doctrine In Light of the Increase in the 
Amount and Type of Information Sources in the Marketplace 

81. Our conclusions regarding the disutility of the fairness 
doctrine find further support by examining the current amount of 



191 Memorandum Opinion and Order in MM Docket No. 84-19 FCC 85-225 
(released May 8, 1985) at If 17. It is well-established that if the benefits of 
retaining a policy are minimal or non-existent, even a relatively small 
administrative burden may be sufficient to justify repeal. For example, in 
assessing whether or not to eliminate the regional concentration rule, one factor 
which we considered was the regulatory costs associated that rule. Finding that 
the administration of that rule had resulted in a staff analysis of 71 
construction permits or assignment applications annually, we determined that 
"this expenditure of staff time . . . constitute^] an appreciable burden on the 
Commission" (id.) despite the fact that there only were three reported cases 
involving the regional concentration rule over a two-year period. Id. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 196 1986 



Fairness Doctrine 197 

diverse and antagonistic sources of information available in the 
marketplace. As we observed in the Notice, significant increases 
in the number and variety of information sources attenuates the 
need for a system of government imposed "fairness" with its 
corollar^ duty to discover and present controversial issues of 
public importance. The Commission's last assessment of the 
information marketplace, and its necessary relationship to the 
legal and policy underpinnings of the fairness doctrine, occurred 
in 1974. At that time the Commission concluded: 

The effective development of an electronic medium with an abundance of 
channels through the use of cable or otherwise is still very much a thing of 
the future. For the present, we do not believe that it would be 
appropriate — or even permissible — for a government agency charged with 
the allocation of the channels now available to ignore the legitimate First 
Amendment interests of the public, {emphasis added) 192 

82. More than a decade has passed since this examination. 
During this time, we have witnessed explosive growth in various 
communications technologies. We find the information market- 
place of today different from that which existed in 1974, as many 
of the "future" electronic technologies have now become contribu- 
tors to the marketplace of ideas. As will be discussed below, the 
growth of traditional broadcast facilities, as well as the develop- 
ment of new electronic information technologies, provides the 
public with suitable access to the marketplace of ideas so as to 
render the fairness doctrine unnecessary. Moreover, we find that 
the dynamics of the information services marketplace overall 
insures that the public will be sufficiently exposed to controver- 
sial issues of public importance. 193 Accordingly, we no longer 
believe it appropriate to continue a system of government 
imposed obligations requiring licensees to discover and "fairly" 
address controversial issues of public importance. We believe that 
elimination of the fairness doctrine would not only promote 
discussion of such issues, but also pay greater fidelity to 
fundamental First Amendment values. 194 

83. Our analysis of the growth in the information services 
marketplace and the impact of this development on the underpin- 
nings of the fairness doctrine shall begin with a discussion on the 
nature and scope of that market. We shall then evaluate the 

192 jg 74 Fairness Report, 48 FCC 2d at 6. 

193 See WNCN Listener's Guild u. FCC, 450 U.S. 582, 594 (1981); Office of 
Communications of the United Church of Christ v. FCC, 707 F.2d 1413 (D.C, 
Cir. 1983) [hereinafter cited as "UCC v. FCC']. 

194 See FCC v. National Citizens Committee for Broadcasting, 436 U.S. at 795. (the 
public interest necessarily invites reference to First Amendment principles). 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C.2d 197 1986 



198 Federal Communications Commission Reports 

current status of this marketplace. Special emphasis will be given 
to the growth of information sources since the Supreme Court's 
decision in Red Lion Broadcasting and our previous evaluation of 
the communications marketplace in the 1974 Fairness Report. As 
a fiAal matter, we will address the availability of these informa- 
tion sources and the incentives to provide coverage to controver- 
sial issues of public importance. 

I. Nature and Scope of the Information Services Marketplace 

84. The Commission has previously addressed this specific issue 
in the context of a television station licensee's programming 
obligations. In our decision deregulating the programming guide- 
lines for commercial television, we noted that the relevant 
information marketplace includes a variety of information sources 
such as cable television, Low Power Television (LPTV), Multipoint 
Distribution Service (MDS), Multichannel Multipoint Distribution 
Service (MMDS), Satellite Master Antenna Service (SMATV), and 
other electronic technologies. 195 Moreover, the Commission, in 
formulating its policy concerning a licensee's responsibility to 
provide programming directed at children, stated that broadcast- 
ers could consider the programming alternatives available on both 
cable and public television in deciding how to meet their own 
nondelegable duty. 196 This policy was later affirmed by the United 
States Court of Appeals. 197 

85. The Commission has also addressed the issue of determin- 
ing the relevant information marketplace in fashioning its rules 
regarding concentration of ownership. For example, we took 
particular note of the rise in the multiplicity of nonbroadcast 
media voices when eliminating the regional concentration of 
control rules. 198 More recently, the Commission addressed this 
issue in a proceeding revising its national multiple ownership 
rules. 199 In this context the Commission noted: 



^ 5 Television Deregulation, 98 FCC 2d at 1086 and 1138. 

196 Report and Order in MM Docket No. 19142, 96 FCC 2d 634 (1984), affd sub 
nom. Action for Children's Television v. FCC, 756 F.2d 899, 901 (DC Cir. 
1985) (per curiam) [hereinafter cited as "ACT v. FCC fT ]. 

WACT v. FCC, 756 F.2d at 901. 

198 See Regional Concentration, supra n,177. 

iw Report and Order in Gen. Docket No. 83-1009, FCC 84-350, 49 Fed. Reg. 
31877 (August 9, 1984), recon. granted in part, Memorandum Opinion and 
Order, FCC 84-638, 50 Fed. Reg. 4666 (February 1, 1985), appeal docketed sub 
nom. National Association of Black Owned Broadcasters v. FCC f No. 85-1139 
(D.C. Cir. filed March 4, 1985). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 198 1986 



Fairness Doctrine 199 

The record in this proceeding supports the conclusion that the information 
market relevant to diversity includes not only TV and radio outlets, but 
cable, other video media and numerous print media as well. In the Notice, 
we took account of the fact that these other media compete with broadcast 
outlets for the time that citizens devote to acquiring the information they 
desire. That is cable, newspapers, magazines and periodicals are substi- 
tutes in the provision of such information. 200 

That the various media are in fact information substitutes in the 
marketplace of ideas is further reflected in our local cable and 
television, newspaper and broadcast, radio and television cross- 
ownership rules. 201 

86. Against this background, the issue in this proceeding is 
whether or not there are inherent differences among various media 
outlets so as to prevent substitutability with respect to the 
presentation of controversial issues of public importance. We find 
nothing in this record which would cause us to arrive at a 
conclusion different from these prior decisions. 202 Accordingly, for 
the purpose of analyzing the fairness doctrine, we believe it is 
appropriate to consider traditional broadcast services, new elec- 
tronic media and print as all part of the information services 
marketplace. 

87. Several commenters argued that broadcasting, particularly 
television, is such a dominant information source that there are 
no other realistic information alternatives. 203 These commenters 
frequently point to studies indicating that television is both the 
primary and most believed source of information in the coun- 
try. 204 We do not believe that the purported dominance of one 
media voice necessarily detracts from the significance of other 
voices with respect to the availability of antagonistic and diverse 
sources of information. The success of one particular medium in 

200 Jd. at 31880. 

201 See 47 C.F.R., § 73.3555(b) [one to a market]; 47 C.F.R. § 76.501 [co-located 
cable-broadcast TV cross-ownership]; and 47 C.F.R. § 73.3555(c) [co-located 
newspaper-broadcast cross-ownership.] 

202 Indeed, as we will discuss, infra, growth in the television and radio services 
alone may obviate the need for the fairness doctrine. See 1f 104, infra. 

203 See, e.g., "Comments of General Motors Corporation, International Paper 
Company and Campbell-Ewaid Company on Notice of Inquiry" at 10, [hereinaf- 
ter cited as "GM Comments"]; "Comments of the Democratic National 
Committee, Democratic Congressional Campaign Committee and Democratic 
Senatorial Campaign Committee at 7-8, [hereinafter cited as "DNC Com- 
ments"]. 

204 Commenters generally cite to the Roper Study for the proposition that 
broadcasting, especially television, is the most utilized and the most believed 
source of news and informational programming. See The Roper Organization 
Inc., "Public Attitudes Toward Television and Other Media in Time of Change" 
May 1985 [hereinafter cited as the "Roper Study'*]. 

102 F.C.G 2d 

HeinOnline — 102 Book 1 F.C.C.2d 199 1986 



200 Federal Communications Commission Reports 

attracting large audiences does not necessarily provide an appro- 
priate justification for imposing governmently mandated fairness. 
Moreover, the data do not suggest that other media voices are 
somehow unavailable. Studies demonstrating the alleged domi- 
nance of television broadcasting are based on data in which 
television was selected as one of several information sources used 
by the respondents. 205 Such data merely serve to demonstrate the 
interchangeability of information options. 206 

88. Similarly, we are not persuaded by those who argue that 
newspapers and broadcast facilities are in different information 
markets because newspapers must be read as opposed to televi- 
sion or radio which may be casually watched or monitored. 207 For 
the purposes of the policies adopted herein, we can find no 
important regulatory distinction in the fact that an individual 
watches television, listens to the radio or reads a newspaper. That 
individuals edit and process information from the various media 
using different senses or while performing different tasks does not 
suggest that the information sources exist in separate isolated 
corners within the marketplace of ideas. In this regard, we believe 
that our regulatory concerns are best limited to considerations 
involving the availability of information sources. Concerns involv- 
ing the manner in which the individuals mentally process the 
information from these outlets generally should not be of regula- 
tory significance. 208 

89. A related argument concerns the fact that broadcasting, 
unlike almost all other media sources, is subject to substantial 
and direct government regulation, 209 We do not believe that a 



205 In this regard, the Roper Study acknowledges that multiple answers have been 
accepted when people have named more than one medium. Id. at 3. 

206 Indeed, it appears that reliance on a particular media voice may depend on the 
type of issue e.g., national, local etc. For example, a recent study published by 
the American Society of Newspaper Editors found that 50 percent of the 
respondents trusted newspapers more than television in trying to understand a 
difficult local news story. Only 37 percent of all respondents said they would 
trust television more in understanding local news. Editor and Publisher, Apr. 
13, 1985, at 9. 

207 See MAP/TRAC Comments, supra n.50 at 75. 

208 Furthermore, we disagree with MAP/TRAC 's contention that television broad- 
casting is unique because it has a captive audience. Id, at 76 n.76. 
MAP/TRAC 's own analysis regarding the ability to listen to broadcasting while 
resting, working or driving is inconsistent with the captive audience hypothe- 
sis. Moreover, reliance on the Supreme Court's decision in FCC v. Pacifica 
Foundation, 438 U.S. at 749, as evidence of the captive audience theory is 
misplaced. The Supreme Court has acknowledged that the decision is limited to 
situations involving children and indecent language. See FCC v. League of 
Women Voters, 104 S.Ct. at 3118. 

2 °9£ee, e.g., MAP/TRAC Comments, supra n.50 at 61. 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 200 1986 



Fairness Doctrine 201 

system of government licensing affects the substitutability of 
information among the various media voices. While such a system 
may influence entry into the information services marketplace, a 
licensing scheme, in and of itself, does not provide a proper 
distinction for the purpose of assessing the impact of broadcast- 
ing as a diverse information voice. 210 Moreover, as we observed 
when adopting our co-located newspaper cross-ownership rules, 
nonregulated information sources may be considered in formulat- 
ing Commission policy. 

90. In addition, we do not believe that purported price differ- 
ences among the various information sources necessarily place 
them in separate information markets. While programming from 
traditional advertiser based broadcast facilities has been consid- 
ered a "zero priced good," there is no evidence in the record 
suggesting that the alleged price differentials between these 
facilities and other "pay" media are significant enough to 
preclude interchangeability among information systems. 211 Indeed, 
the monthly cost of a daily newspaper may be comparable to or 
even less than the monthly cost of basic cable service. 

91. Several commenters suggested that newer technologies such 
as pay cable, STV, MDS, DBS are not adequate information 
substitutes with respect to the provision of issue related program- 
ming. As will be discussed infra, we believe there are sufficient 
incentives to insure the presentation of programming that ad- 
dresses controversial issues of public importance. These incentives 
exist not only for traditional broadcast facilities, but also for the 
newer electronic technologies. 212 

210 In this regard, we note that even assuming costs associated with the 
limitations of the Commission allocations scheme, the actual barriers to entry 
in terms of capital costs, may be lower for radio and television broadcasting 
than for daily newspapers. See Wirth, Michael, Economic Barriers to Entry 
Daily Newspapers vs. Television Stations vs. Radio Stations, August 1984, 
cited in NAB Comments, supra n.79 App. Vol., App. C. 

211 We note that while there are no subscription fees for over-the-air broadcasting, 
there may be costs involved in viewing "free" over-the-air television. Such costs 
would take the form of opportunity costs lost while watching unwanted 
program material. 

212 See Iff 129-131, infra. Some Commenters also argued that the newer electronic 
technologies will not provide coverage to local controversial issues. We find this 
argument unpersuasive. Existing fairness obligations regarding the coverage of 
controversial issues of public importance do not necessarily require that the 
issue be solely of local importance. In this regard, controversial issues 
confronting a particular community may be national in scope and may be 
sufficiently addressed by "national programming." Moreover, we note our prior 
decisions in which we observed that programming addressing local issues need 
not be produced at the local level. See Television Deregulation, 98 FCC 2d at 
1085, citing WPIX, Inc., 68 FCC 2d 381, 402 (1978) 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 201 1986 



202 Federal Communications Commission Reports 

92. In sum, we find the record in this proceeding supports the 
conclusion that the various print and electronic media exist in a 
widely diverse and competitive information marketplace. We now 
turn to a consideration of the current availability of these diverse 
medik outlets. ' 

2. Status of the Information Services Marketplace 

93. As we observed in the Notice, there has been explosive 
growth in the communications marketplace since the inception of 
the fairness doctrine in 1949. Of particular significance is the 
development of the marketplace since the Supreme Court's 
decision in Red Lion Broadcasting in 1969 and our subsequent 
analysis of the market in the 1974 Fairness Report. 21 * In the 
following analysis, we will focus on the major participants in the 
information services marketplace: (a) over-the-air broadcasting, (b) 
substitute electronic technologies and (c) the print media. 

(a) Broadcasting 

94. The growth and development of radio broadcasting since 
the inception of the fairness doctrine has been dramatic. The total 
number of radio stations has increased by 280 percent since the 
1949 Fairness Report. Moreover, there has been a 48 percent 
increase in the number of radio stations since the Supreme 
Court's decision in Red Lion and a 30 percent increase since the 
Commission's 1974 Fairness Report. During the period the most 
significant growth occurred in the FM service where there has 
been a 113 percent increase since Red Lion and a 60 percent 
increase since our 1974 Fairness Report. 

Number of Radio Stations 
1949 1969 1974 1985 



AM 


1877 


4256 


4407 


4787 


FM 


687 


2330 


3094 


4979 


Total 


2564 


6595 


7501 


9766 



Source: 1949, 1969, 1974 (on-air stations) data from Television and Cable 
Factbook, Cable and Services Volume No. 52 (1984): 1985 data from FCC 
release No. 5080, June 11, 1985. 



213 See Red Lion Broadcasting Co. v. FCC, supra n.10; 1974 Fairness Report, supra 
n.3. 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 202 1986 



Fairness Doctrine 203 

95. Of particular significance is the fact that the number of 
radio voices available in each local market has grown. 214 In this 
regard, we note that competition resulting from an increase in the 
number of radio outlets was the primary factor in our decision to 
deregulate the program guidelines, commercial limitations and 
formal ascertainment requirements for commercial radio. 215 More- 
over, there has also been a fundamental change in the structure of 
the radio market. Once predominently an AM only service, radio 
is now composed of two very competitive services. For example, 
at the time of the 1974 Fairness Report there were over a 
thousand more on-air AM stations than FM stations. Since that 
time, however, FM has eclipsed AM as the largest radio service. 
Because of its higher fidelity, the growth of FM constitutes a 
significant improvement in the quality of radio service to the 
public. The development of radio can also be seen in the diversity 
of its program distribution systems. At the present time, there 
are approximately 11 national radio networks and 90 regional 
radio networks. 216 

96. We also note that the number of radio outlets will continue 
to increase with the further development of spectrum efficient 
technologies. Recently, the Commission allocated 689 new FM 
channels and adopted new procedures to assist in the development 
of these allotments. 217 In addition, we have recently adopted new 
application procedures which are designed to streamline the 
processing of these new FM allotments as well as the existing 152 
vacant FM allotments. 218 With respect to AM service, the 
Commission in 1980 acted in limit the protection from interface 
afforded Class I-A clear channel stations so as to increase 
spectrum availability for new AM radio services. 219 More recently, 



214 Data submitted by NAB demonstrates that generally the growth of radio 
voices has generally occured throughout the various radio markets. See NAB 
Comments, supra n.79 App. Vol., App. A at 19-63. These data confirm the 
Commission's previous conclusions regarding overall growth in radio markets. 
See Inquiry and Notice of Proposed Rule Making in BC Docket No. 79-219, 73 
FCC 2d 457, 548-551 (1979). 

215 Report and Order in BC Docket No. 79-219, 84 FCC 2d 968 (1981), recon. 
denied, 87 FCC 2d 797 (1981), rev'd on other grounds sub nom. UCC v. FCC, 
supra n.193 (hereinafter cited as "Radio Deregulation"). 

216 Broadcasting/Cablecasting Yearbook, (1985) at Fl-61. 

™See Report and Order in Docket No. 80-90, 53 FCC 2d 1550 (1983); First 
Report and Order in MM Docket No. 84-231, 50 Fed. Reg. 3514 (January 25, 
1985); Second Report and Order in MM Docket No. 84-231, FCC 85-124 
(released April 12, 1985). 

218 See Universal Filing Period, Public Notice, FCC No. 4699 (May 22, 1985). See 
also Report and Order in MM Docket No, 84-750, FCC 85-125, 50 Fed. Reg. 
19936 (May 13, 1985). 

219 See Clear Channel Broadcasting in the AM Broadcast Band, 78 FCC 2d 1345 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 203 1986 



204 Federal Communications Commission Reports 

the Commission in various proceedings has adopted policies 
making more efficient use of existing spectrum as well as 
enlarging that portion of the spectrum available for AM broad- 
cast use. 220 

97. 1 Equally significant has been the dynamic growth of over- 
the-air television broadcasting. The statistics presented below 
show the development of this medium. 

Number of Television Stations 

1949 1969 1974 1985 



VHF (Total) 


51 


577 


605 


654 


Commercial 


— 


499 


513 


541 


Educational 


— 


78 


92 


113 


UHF (Total) 





260 


333 


554 


Commercial 





163 


184 


369 


Educational 





97 


149 


185 


Total 


51 


837 


938 


1208 



Source: 1949, 1969 and 1974 (on-air stations) data from Television 
Factbook, Cable and Services Volume No. 52 (1984); 1985 data from FCC 
publication No. 5080 June 11, 1985. 

98. As the above data demonstrate, there has been a 44.3 
percent increase in the overall number of television stations since 
the Supreme Court's decision in Bed Lion Broadcasting. This 
represents a 13.3 percent increase in VHF stations and a dramatic 
113 percent increase in UHF stations. Television growth since the 
Commission's 1974 Fairness Report has also been significant, 
amounting to a 28 percent increase in the overall number of 
television stations With 66.4 percent increase in UHF stations. 

99. The continued growth in television broadcasting has led 
directly to an increase in signal availability in local markets. 

(1980), recon. denied, 83 FCC 2d 216 (1980), affd sub nom. Loyola University v. 
FCC, 670 F.2d 1222 (D.C. Cir. 1982). 
2 20 See, e.g., Report and Order in MM Docket No. 84-281, FCC 85-224 (released 
May 7, 1985) (foreign nightime AM clear channels); Report and Order in MM 
Docket No. 84-752, FCC 85-150 (released April 24, 1985) (AM rules and 
international agreements); Notice of Proposed Rule Making in MM Docket No. 
85-39, FCC 85-75 (released March 12, 1985) (AM application criteria); Second 
Notice of Inquiry in Gen. Docket No. 84-647, FCC 84-644 (released January 
11, 1985) (preparation for ITV conference); Report and Order in BC Docket 
82-538, FCC 83-412, 48 Fed. Reg. 42944 (September 30, 1983), recon. denied in 
part, FCC 84-591 (released December 4, 1984) (AM daytime operations). 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 204 1986 



Fairness Doctrine 205 

Stations Receivable Per TV Household 
Number of Stations Receivable 

1-4 5-6 7-8 9-10 11-14 15-19 20+ 

1984 4% 11% 21% 22% 24% 15% 3% 

1972 17% 22% 30% 21%* - - - 

1964 41% 33% 18% 8%* - - - 

* 9+ stations 

Source: Nielson Report on Television t 1985 at 2. 

As of 1984, 96 percent of the television households received five 
or more televisions signals. This figure represents a significant 
increase in actual signal availability since 1972, where only 83 
percent of the television households received five or more signals. 
The increase in even more dramatic compared to 1964 when only 
59 percent of television households were capable of receiving 5 or 
more stations. Today, only 4 percent of the television households 
receive fewer than five signals. These statistics demonstrate a 
significant growth in signal availability throughout the country. 
Of particular significance is the fact that these figures are based 
on over-the-air reception and do not include the enhanced signal 
availability achievable with cable television. The significance of 
cable television as a factor in increasing the number of available 
signals will be discussed, infra. These data generally confirm 
statistics supplied by several commenters which demonstrate an 
increase in signal availability in both large and small markets. 221 

100. Increases in the number of outlets and signal availability 
does not necessarily provide a complete picture of the fundamen- 
tal structural changes occurring in the television marketplace. For 



221 A study of signal availability submitted by NAB generally confirms this 
conclusion. NAB examined the growth of television signals in large markets 
(ADI 1-50), medium markets (ADI 50-100) and small markets (AD I 101 + ). Of 
particular interest is the increase in signal availability in small markets. Of the 
thirty-one small markets surveyed, seventeen had both an increase in signal 
availability since 1974 and a projected increase by 1990. Four markets showed 
an increase in signal availability since 1974 but had no projected increases- Ten 
markets exhibited no growth in signal availability between 1974 and 1984. 
However, seven of these markets anticipated increases in signal availability by 
1990. Only three markets exhibited both no growth between 1974-1984 and no 
projected growth. However, one of these markets had four available signals and 
the remaining two markets had achieved significant cable penetration. See 
NAB Comments, supra n.79 App. Vol., App. A at 48-63. 



102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 205 1986 



206 Federal Communications Commission Reports 

example, UHF television, once thought to have occupied second 
class status, is now a significant voice in the marketplace. 222 
Indeed, the growth of this service — 113 percent since Red Lion — 
is evidence of its economic viability. Concomitant with the 
growth in UHF stations has been the increased importance of 
independent television* As the Commission observed in its televi- 
sion deregulation decision, the growth of UHF independent 
television stations has added an important new voice in the 
information marketplace. 223 Since 1970, the number of indepen- 
dent television stations has grown from 90 to 214 stations, an 
increase of 107.7 percent. 224 Moreover, the growth in independent 
television stations has not been confined to a few large markets* 
As of 1984, independent stations were located in 98 different 
markets and reaching 82 percent of all television households. 225 

101. The impact of the rise of independent television stations 
can be seen in the steady decline of the network's audience share. 
As the Commission previously observed, the overall network 
audience share declined from 90 percent to 80 percent in 1983. 226 
This trend continues as the overall network share dropped from 
80 percent in 1983 to 76 percent in 1984. 227 In television 
households without cable television, the network share of the 
audience declined from 89 percent in 1983 to 85 percent in 1984. 
During this time period, non-network television usage in these 
housholds increased from 17 percent in 1983 to 21 percent in 
1984. Moreover, non-network television stations were able to 
maintain their share of the television audience even in households 
subscribing to either pay cable or basic cable service. 228 

102. Further structural changes can be seen in the development 

222 We note that while there always be physical differences between UHF and 
VHF services, these differences do not necessarily mean that UHF stations will 
not be a viable force in the television marketplace. See Report and Order in 
Gen. Docket No. 78-391, 90 FCC 2d 1121, 1124 (1982). Moreover, cable 
television has enhanced the ability to receive UHF stations thereby making it 
comparable to VHF television in markets that have been wired. 

22 3 See Television Deregulation, 98 FCC 2d at 1083 (1984). 

224 The growth in independent television stations has occurred primarily in the 
UHF television services. In 1970 there were 59 UHF independents compared to 
155 in 1984. Id. at 1139 [1970 data]; Data of 1984 taken from Broadcasting, 
Jan. 7, 1985, at 82. 

225 See Broadcasting, Jan. 7, 1985, at 82. 

226 Television Deregulation, 98 FCC 2d at 1139. 

227 Nielson Report on Television, (1985) at 12. 

228 In households subscribing to pay cable services, the audience share of 
non-network stations increased from 16 percent in 1983 to 18 percent in 1984. 
During this same period the audience share of these stations remained stable — 
20 percent — for homes subscribing only to basic cable service. Id. 

102 F.C.a 2d 



HeinOnline — 102 Book 1 F.C.C.2d 206 1986 



Fairness Doctrine 207 

of new program distribution systems among group owners. 229 We 
believe these alternative systems will not only provide new 
programming sources, but also enhance the economic viability of 
local independent television stations. Moreover, our recent modifi- 
cation, to the natural multiple ownership rules is expected to 
foster the development of these new systems, thereby enhancing 
diversity at the local level. 230 In this regard, the development of 
these stronger voices may facilitate the ability of these stations to 
address controversial issues of public importance. 231 

103. We also note that additional grown can be achieved by 
utilizing vacant allocations and improved spectrum efficient 
technologies. Currently, there are a total of 54 vacant VHF 
channels and 462 vacant UHF channels. 232 Of these vacant 
allocations, 34 are commercial VHF channels and 109 commercial 
UHF channels. These vacancies appear in both large and small 
markets. For example, in the top 50 markets there are 32 
commercial UHF vacancies. Moreover, 19 of these UHF vacancies 
are located within fifty-five miles of their respective titled AD I 
cities. There are also 20 noncommercial HF vacancies and 353 
noncommercial UHF vacancies available nationwide. In addition, 
the Commision and others have conducted several studies demon- 
strating the technical feasibility of various UHF improvements, 
including enhanced reception, thereby reducing the impact of the 
traditional UHF "taboos". 233 Such improvements have the poten- 
tial of increasing the number of UHF stations available in each 
market. These technological improvements combined with the 
number of vacant channels suggest that there is sufficiently 
available spectrum to anticipate continued growth in the number 
of television broadcast facilities. 

104. Given the significant development of both radio and 
television, we believe it is no longer necessary to utilize a 



229 F or example, as of January 1985, Gannett Broadcasting Group, Hearst 
Broadcasting, Metromedia Inc., Storer Communications and Taft Broadcasting 
(prior to its merger with Gulf Broadcasting), representing 32 stations reaching 
45 percent of television households had established a consortium to produce 
programmings. See Broadcasting, Jan. 7, 1985, at 86* 

230 See Memorandum Opinion and Order, 50 Fed. Reg. at 4670. 

231 We also note that the changes in the national multiple ownership rules will 
assist in the acquisition of those stations which were formerly devoted to 
subscription television. Broadcasting, Jan. 7, 1985, at 86 and 90. 

232 Television Channel Utilization, FCC No. 3723, Apr. 9, 1985. 

233 See, e.g., Program to Improve Television Reception, Georgia Institute of 
Technology, September 1980; J. B. O'Neill, Television Receiver Noise Figure 
Study, North Carolina State University, February 1980.; A. Stillwell, and R. 
Wilmotte, Spectrum Requirements of UHF Television with Current and 
Improved Tuning, FCC Office of Plans and Policy, 1978. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 207 1986 



208 Federal Communications Commission Reports 

mechanism of government imposed "fairness" in order to insure 
appropriate coverage of controversial issues of public importance. 
As the above data amply demonstrate, there are a sufficient 
number of over-the-air television and radio voices to insure the 
presentation of diverse opinions on issues of public importance* 234 
Our decision in this proceeding is guided to some extent by the 
underlying policies expressed in the radio and television deregula- 
tion proceedings. 235 In both decisions, the Commission found that 
the growth of the broadcast medium created sufficient economic 
incentives to attenuate the need for each licensee to provide "well 
balanced something for everyone programming." Similarly, we 
believe that the growth in both radio and television broadcasting 
provide reasonable assurance that a sufficient diversity of opinion 
on controversial issues of public importance will be provided in 
each broadcast market. In this regard, we note that even if there 
has been no increase in alternate electronic information sources, 
the growth and development of both the radio and television 
markets by themselves make the fairness doctrine an unnecessary 
regulatory mechanism. 

(b) Substitute Electronic Technologies 

105. In addition to traditional over-the-air television and radio 
broadcasting, we find that there exist numerous alternative 
electronic technologies making a significant contribution to the 
marketplace of ideas. The importance of these technologies, 
especially cable television, in the policy making context was 
recently recognized by the United States Circuit Court of Ap- 
peals. 236 We believe that in the context of this proceeding 
consideration should be given to the contributions of cable 
television, low power television (LPTV) multichannel multipoint 
distribution service (MMDS), video cassette recorder (VCR), 
satellite master antenna systems (SMATV) and other electronic 
media including recent advancements in satellite technology. 

106. Universally recognized as a significant non-over-the-air 



234 This diversity is illustrated further by the combined coverage of both television 
and radio signals. For example, in a separate proceeding CBS claims that its 
television station in New York City emcompasses 196 radio stations within it 
Grand B Contour. Moreover, CBS asserts that its New York television station 
must compete with 278 radio stations which provide service to some portion of 
the area covered by its Grade B contour. See "CBS Reply Comments" filed 
with In re Application of Turner Broadcasting System, Inc., File No. 
BTCCT-850418 et al, June 1985 at 60. 

235 See Radio Deregulation, supra n.215; Television Deregulation, supra n.177. 

236 ACT v. FCQ 756 F.2d at 901. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 208 1986 



Fairness Doctrine 209 

electronic medium, cable television has developed from a means of 
improving reception into a major industry providing video pro- 
gramming. Early data show that in 1952, three years after the 
1949 Fairness Report, there were 70 operating cable systems with 
an estimated 14,000 subscribers. 237 At the time of the Supreme 
Court's decision in Red Lion there were [ 2,260 systems in 
operatipn with an estimated 3.6 million subscribers. 238 By the 
time of our 1974 Fairness Report, there were 3,158 operating cable 
systems with a reported 8.7 million subscribers. 239 As of 1985 
there are 6,600 operating cable systems in 18,500 communities 
with approximately 1,600 franchises that have been approved but 
not built. 240 According to recent A. C. Neilson estimates, 
U.S.cable households now number 38,673,270 placing national 
cable penetration at 43.3% of all television households. 241 In 
comparative terms, the number of cable systems in operation has 
increased 195 percent since Red Lion and 111 percent since the 
Commission's 1974 Fairness Report. Growth in subscribership 
amounts to an astronomical 975 percent since the Red Lion 
decision and 345 percent increase since the 1974 Fairness Report. 
Moreover, cable television will continue to expand in the future. 
According to a recent study by Arthur D. Little Inc., the number 
of cable subscribers will increase to 48 million by 1990. 242 In 
addition, industry revenue is expected to double from 8.4 billion 
in 1984 to 16.5 billion in 1990. During this period after tax 
revenues are expected to triple from $600 million in 1984 to 1.7 
billion in 1990. 243 

107. The importance of cable's development, however, is not 
limited to increases in the number of systems. Indeed, there has 
been a significant change in the nature of cable service. For 
example, at the time of the Red Lion decision only 1 percent of all 
cable systems had the capacity to carry more than 12 channels. 244 
As of April 1, 1984, 58 percent of the cable systems exceed 12 



237 Television and Cable Factbook, Cable & Services Volume No. 52 (1984) at 1735. 

238 Jd. 

23 9 Id. 

240 Broadcasting/Cablecasting Yearbook, (1985) at D-3. 

241 Broadcasting, June 17, 1985 at 10. 

242 Prosperity for Cable TV: Outlook 1985-1990, Arthur D. Little Inc., cited in 
Broadcasting, June 10, 1985 at 32- This may be a conservative estimate. As we 
have noted elsewhere, some analysts expect cable penetration to be 60 percent 
by 1990, reaching 58 million subscribers. See Television Deregulation, 98 FCC 
2d at 1138. Another source has estimated that cable penetration will reach 54 
percent by 1990. Cablefile, (1985) at 111-26. 

2 ^Id. 

244 Notice, supra n.l at 37 n.47 citing B. M. Compaine, C. H. Sterling, T. Guback 
and J. K. Noble, Jr., Who Owns the Media (2nd ed. 1982) at 418. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 209 1986 



210 Federal Communications Commission Reports 

channels. Most importantly, however, systems limited to 12 
channels or less comprise only* 18.63 percent of total cable 
subscribers. 245 The significance of cable television is also demon- 
strated by its ability to increase the number of viewing options 
available to the public. The following table illustrates the impor- 
tance of cable by comparing the number of stations receivable per 
television household to the number of channels receivable with 
cable television. 

Stations and Channels Receivable 
Per TV Household in 1984 

1-4 5-6 7-8 9-10 11-14 15-19 20+ 
Number of 

Channels 
Receivable 

(includes 

cable) 3% 5% 9% 9% 29% 16% 29% 

Number of 

Stations 
Receivable 

(absent 

cable) 4% 11% 21% 22% 24% 15% 3% 

Source: Nielson Report on Television, (1985) at 2. 

With the inclusion of cable telvision, the number of households 
capable of receiving more than six television signals increases 
from 85 percent of all television housholds to 92 percent of all 
television households. Similarly, the percentage of television 
households capable of receiving more than ten television signals 
increases from 42 percent to 74 percent. The most dramatic 
increase in signal availability appears in households receiving 20 
or more signals. Absent cable, these households comprise only 3 
percent of all television households as compared with 29 percent 
of all television households when cable is considered. The impor- 
tance of increased channel capacity is enhanced by the ready 
availability of a wide variety of cable networks which provide a 
significant array of diverse programming. As one commenter has 
noted, there are approximately twenty-eight basic cable networks 



245 Television and Cable Factbook, Cable & Service, Volume No. 52, 1984 at 1726. 
102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 210 1986 



Fairness Doctrine 211 

not including four super stations. 246 Many of these networks have 
highly specialized program formats including news channels such 
as the Cable News Network, the Financial News Network, and 
public affairs programming such as C-Span. 247 In addition, there 
are approximately 10 pay cable networks in operation. 

108. Apart from the growth in the number of cable systems, we 
find that the pattern of development in small markets to be 
particularly relevant to the objectives of this proceeding. The 
record in this proceeding clearly demonstrates that cable services 
are ill important media voice in small markets. Cable penetration 
rates in these markets are far in excess of the national average 
and significantly higher when compared with larger broadcast 
markets. 248 The high penetration levels in these small markets 
suggest that there is a significant degree of substitutability 
between cable and over-the-air television broadcasting. 

109. We also note that the Cable Communications Policy Act of 
1984 will play an important role in expediting further develop- 
ment of cable technology. 249 Congress intended to establish a 
national policy that encourages the growth and development of 
cable television as well as insuring that cable systems are 
responsive to the needs and interests of the local communities 
they serve. 250 Under the Act, a franchising authority is able to 
establish and designate channels for public, educational or govern- 
ment (PEG) use as well as commercial access channels for 
systems with 36 or more activated channels. 251 

110. Another developing voice in the information services 
market is Low Power Television (LPTV), These stations are 
over-the-air television broadcast facilities, generally limited to 10 
watts for VHF and 1,000 watts for UFH stations. These facilities 
were nonexistent at the time of the Red Lion decision and our 



246 See NAB Comments, supra n.79 App. Vol., App. A at 4. 

247 Additional growth in cable networks can be expected. For example, the 
Discovery Channel recently commenced operation offering a basic cable service 
of educational, non-fiction, science and nature programming free to cable 
operators. Multichannel News, June 24, 1985 at 1, 

248 p or example, an analysis of NAB's data concerning 31 of the smallest 
television markets (100+) reveals a combined average subscription rate of 
approximately 57 percent, almost fourteen percentage points higher than the 
national average. See NAB Comments, supra n.79 App. Vol., App. A. 

249 Cable Communications Policy Act of 1984, Pub. L.No. 98-549, 98 Stat. 2779 
(1984). 

250 See House Committee on Energy and Commerce, H.R. Rep. No. 931, 98th 
Cong. 2d Sess. at 19 (1984); See also Report and Order in MM Docket No. 
84-1296, FCC 85-179 (released Apr. 19, 1985) at 28-37. 

25i Id. at 30. 



102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 211 1986 



212 Federal Communications Commission Reports 

1974 Fairness Report. Stations of this power were translators, 
limited to the rebroadcast of signals from full service stations. In 
1982, the Commission authorized these stations to originate 
programming. 252 There are currently 126 licensed low power UHF 
stations and 215 low power VHF stations. 253 It is predicted that 
this source will eventually add an additional 4000 television 
stations to the marketplace. Moreover, the most significant 
administrative problems inhibiting initial development of this new 
service have been rectified with the establishment of new process- 
ing procedures designed to expedite the development of this 
medium. 254 

111. LPTV significantly expands the information marketplace. 
Allocation policies have emphasized placing these facilities in 
smaller markets were there are fewer over- the- air full service 
television facilities. With lower entry and operating costs, LPTV 
can be an important source of local programming in rural areas. 
In larger markets, LPTV will be able to target its audience to 
specific communities or ethnic groups. 255 A recent economic study 
provides some evidence that this service appears to be commer- 
cially viable in certain areas of the country. 256 

112. At the time of the 1974 Fairness Report ', multipoint 
distribution service (MDS) was just beginning to develop as a 
communications service. Used primarily to provide subscription 
programming via microwave transmissions, there were approxi- 
mately 438,578 MDS subscribers out of a potential audience of 
13.1 million at the end of 1984. 257 Confined to offering a single 
pay channel, MDS subscription declined slightly from 1983 levels. 

113. Expectation of growth in MDS will likely involve the 
development of multichannel MDS systems. With the reallocation 
of 8 channels from Instructional Fixed Television Service, 
multichannel MDS will be able to offer multiple channels as 

252 See Report and Order, in BC Docket No. 78-253, FCC 82-107, 47 Fed. Reg. 
21468 (1982). 

253 FCC release No. 5080, June 11, 1985. 

254 See Report and Order in MM Docket No. 83-1350, FCC 84-492 (adopted 
October 18, 1984). 

255 Legal Times, Dec. 8, 1984, at 1; Wall Street Journal, Oct. 23, 1984, at 1. 

256 The study, conducted by Kompas Beil Associates, indicates that LPTV may 
already be a viable service in some areas. Of the stations initially responding to 
its survey, 16 stations were non-profit religious stations, 8 were operating as 
subscription television, 10 were operating as non-profit educational stations. 
Sixteen stations were operating on a commercial basis with fourteen of these 
stations reporting a profit. Two of the stations were temporarily off the air 
with copyright problems. Videography, Apr. 1985 at 72. 

257 Paul Kagen Associates, Inc., Multicast Newsletter, Apr. 17, 1985. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 212 1986 



Fairness Doctrine 213 

opposed to a single viewing option. 258 Added to this are leases 
available from ITFS operators leading to MMDS systems of up to 
twenty two channels. As of February 1985, there were 16,499 
applications on file with the Commission. 259 The advantage of this 
service lis that construction costs and time delays are greatly 
reduced, relative to cable, since wiring to a headend is not 
necessary. Estimates of subscribership growth by 1990 range 
between 6 to 12 million subscribers. 260 

114. Satellite Master Antenna Systems (SMATV) are similar to 
cable systems except that they are built in individual apartment 
complexes, condominiums, hotels and trailer parks. These "pri- 
vate" cable systems did not exist at the time of the Red Lion 
decision or our 1974 Fairness Report The Commission's decision 
not to regulate these systems, coupled with preemption of state 
and local regulation, has facilitated the development of this 
service. 261 According to the National Satellite Cable Association 
about 600,000 to 800,000 homes have been wired with this 
service. 262 Because of lower capital and construction costs, 
SMATV systems have become increasingly popular in both rural 
and urban areas that are currently unserved by cable television. 263 

115. Sales of video cassette recorders continue to have a major 
impact on the information marketplace. As with many other new 
technologies, VCR's were not readily available at the time of the 
1974 Fairness Report The impact of this technology on other 
electronic video technologies has been significant. By the end of 
1985 it is estimated that there will be 23.3 million VCR homes 
representing 27.4 percent of all TV households. 264 A more recent 
study of VCR penetration reported that sales are running about 
one million a month and will reach critical mass penetration of 
one third of all homes by early 1986. According to the report the 
term "critical mass" is used to describe the penetration level that 



258 See Report and Order in Gen. Docket 80-112, 94 FCC 2d 1203 (1983). 

259 Broadcasting, Feb. 11, 1985, at 56. 

260 Television Deregulation, 98 FCC 2d at 1140. 

261 See Memorandum, Opinion Declaratory Ruling and Order in in CSR 2347, 95 
FCC 2d 1223 (1983), recon. denied, FCC 84 206 (May 14, 1984), affd. sub 
nom. New York State Commission on Cable Television v. FCC, 749 F.2d 805 
(D.C. Cir. 1984). 

262 New York Times, Dec. 5, 1984, at 30. A more conservative estimate was 
provided by Paul Kagen Associates who estimated subscribership at 290,000. 
Paul Kagen Associates, SMATV News, Apr. 25, 1984. 

z^New York Times, Nov. 13, 1983, at 47; See also New York Times, Dec. 19, 

1982, at 1. 
264 Television/Radio Age, May 27, 1985, at c7 {citing Paul Kagen Associates). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 213 1986 



214 Federal Communications Commission Reports 

establishes the technology as a mass medium. 265 Further esti- 
mates place VCR usage at 67.9 million homes representing 68 
percent of all television households by 1990. 266 

116. We take particular note of the development of video 
recprdings as a means of disseminating issue related video 
programming. 267 We find this to be a significant development in 
the information marketplace. To the extent VCR's do not utilize 
spectrum, anyone who desires to communicate by television may 
do so by means of a VCR. In this regard, we agree with NBC that 
VCR's have the potential to become the " electronic handbills" or 
indeed even the electronic newspaper of the future. 268 Moreover, 
our own empirical analysis of the relationship between VCR's and 
television reveals that a VCR is both a substitute and a 
complement to over-the-air and cable television. 269 In other words, 
VCR's act not only as a means of time shifting programming, but 
also as an independent source of programming. Moreover, the 
ability to reschedule video programming gives viewers the oppor- 
tunity to acquire additional information from other sources. By 
time shifting, viewers are able to reallocate their time so as to 
increase the number of potential viewing options. 270 We believe 
that the flexibility afforded the public by VCR's, represents an 
important qualitative development in the information services 
marketplace. 

117. The above mentioned electronic technologies are the most 
prominent alternatives to over-the-air broadcasting in today's 
marketplace. There are other electronic services, however, that 
have the potential of becoming substitute information sources in 
the marketplace of ideas. We do not, however, find them to be 
significant contributors to the marketplace at this time. 

118. The direct to home satellite services (DBS) is still in the 
beginning stages of development. Using the Ku satellite band, 



2 ^ Broadcasting, July 8, 1985, at 14 (citing a study conducted by Young & 

Rubicam USA). 
266 /i 

267 UCC notes in its Comments that there are currently 72 titles considered public 
affair by the publishers. Similar categories such as "Civil Rights" (54 titles) 
and "Documentaries" are also included. See UCC Comments, supra n.170 at 3. 

268 See NBC Comments, supra n.86 at 88. 

269 J. Levy and P. Pitsch, Statisical Evidence of Substitutability Among Video 
Delivery Systems, FCC Office of Plans and Policy, April 1984. See also J. Levy 
and F. Setzer, Measurement of Concentration in Home Video Markets, FCC 
Office of Plans and Policy, December 23, 1982. 

270 According to Neilson data, 59 percent of all recordings are made with the 
television set turned off, 17 percent occurs while viewers are watching a 
different channel and 24 percent of viewers record from the channel they are 
watching. Neilson Report on Television, (1985) at 13. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 214 1986 



Fairness Doctrine 215 

this service generally provides programming directly to house- 
holds. Households using this service either rent or purchase a 
small one meter-earth station. The first direct broadcast satellite 
services was authorized by the Commission in 1982. 271 Of the 
eight original applicants, three have been granted orbital and 
channel assignments and launch authority. In 1984, the Commis- 
sion granted six additional applications for DBS service. 272 One of 
these grantees has been given launch authority as well as its 
orbital and channel assignment. Currently, the Commission has 
pending before it six DBS applications seeking either to modify 
existing grants or apply for new allocations. 273 It appears, 
therefore that despite the recent setbacks, there is a continued 
interest in the development of DBS service. 274 

119. Another important element prompting the development of 
satellite direct service is the continued growth in the home earth 
station market. Latest reported data indicate that there are 
approximately one million existing earth stations and estimates of 
growth range between 40,000 to 80,000 per month. 275 Moreover, 
the Cable Communications Policy Act of 1984, which clarified the 
legality of receiving satellite signals, may provide an additional 
spur to this already expanding market. 276 Because of the poten- 



271 See Direct Broadcast Satellite Services, 90 FCC 2d 676 (1982) recon. denied, 
FCC 83-241, (released May 19, 1983), rev'd, United States Satellite Broadcast- 
ing Company, Inc. v. FCC, 740 F.2d 1177 (D.C. Cir. 1984); Satellite Television 
Corporation, 91 FCC 2d 953 (1982); CBS, Inc., 92 FCC 2d 64 (1982). See also 
GTE Satellite Corporation, 90 FCC 2d 1009 (1982) recon. denied, FCC 83-271 
(released June 23, 1983). Of the eight original grantees, four were able to 
demonstrate due diligence in proceeding with the development of their 
respective DBS systems. See CBS, Inc., FCC 84-477 (released October 10, 
1984). Two of the parties failing to meet the due diligence requirements have 
re-applied to the Commission for DBS authorization. 

272 See Satellite Syndicated Systems Inc., FCC 84-608 (released December 16, 
1984). 

2 ™See Public Notice "DBS Applications Accepted for Filing" Rep. No. DBS 2-B 
(released April 4, 1985). Three of these applicants are existing grantees seeking 
additional channels. Two of the three applicants seeking new DBS authoriza- 
tion were previously granted such authority but failed previously to meet the 
Commission's due diligence requirements. 

274 Earlier this year, U.S.C.I. terminated service to its approximately 10,000 
subscribers. DBS Newsletter, April 1985 at 1. This DBS service was not a 
Commission licensee but rather utilized Canada's Telesat Anik C-II satellite. 
While this system did not prove to be a commercial success, it did demonstrate 
the technical feasibility of Ku band direct satellite service. See Broadcasting, 
July 8, 1985 at 52. 

27 ^See Broadcasting, July 8, 1985, at 52. 

276 Cable Communications Policy Act of 1984, Pub. L. No. 98-549, §5(b), 98 Stat. 
2779 (1984). This section amended section 705 of the Communications Act by 
allowing the reception of any satellite cable programming for private viewing 



102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 215 1986 



216 Federal Communications Commission Reports 

tially enormous market, some traditional cable programmers have 
suggested scrambling their signals to provide a direct to home 
satellite service from their C band satellites. 277 Facilitating the 
development of this system is the oversupply of transponders 
which will lower the costs of transmissipn making this form of 
program particularly attractive. 278 While the development of a 
C-band direct system is still in the planning stage, there appears 
to be significant movement towards developing this service. 279 

120. Satellite technology has also played a significant role in 
enhancing existing information services. For example, satellites 
have allowed local television stations to increase their capability 
to gather news. Satellite news gathering (SNG) has become an 
important element in providing regional coverage. 280 In addition, 
satellite technology has become an important part of the syndica- 
tion market. 281 The nationwide access afforded by this technology 
increases the opportunities for another source of programming 
through ad-hoc networking, thereby increasing viewpoint diversity 
in local markets. 

121. An additional alternative technology is subscription televi- 
sion (STV). STV is a pay service that sends over-the-air television 
signals, in a scrambled mode, to its subscribers. The number of 
STV outlets has declined in recent years due primarily to 
increased cable penetration. As of June 30, 1984 there were 
approximately 701,042 STV subscribers and 19 STV channels 
operating in 17 markets. 

122. Additional information technologies are continuing to be 
developed. The Commission has recently authorized the use of FM 
Radio subcarriers. 282 Subcarriers may be utilized for a variety of 
different functions such as * 'radio talking books", commodities 
information, stock quotes and news. The Commission has also 



if: (1) the programming involved is not encrypted and, (2) a marketing system 
has not been established. 

277 Descramblers for the reception of HBO, which scrambles part of its program- 
ming, are already being manufactured. Approximately 25,000 headend 
descramblers have been produced and parts have been ordered for 100,000 
consumer units which will be distributed to wholesalers next fail. See 
Broadcasting, July 8, 1985, at 83. 

278 Id at 46. 

279 See Broadcasting, July 1, 1985, at 87; Broadcasting July 8, 1985, at 52. 

280 See Broadcasting, July 8, 1985, at 60. 

281 Id. at 58. In this regard, we note that continued development of satellite 
technologies will facilitate the development of new program distribution 
systems. See 11 102, supra. 

282 Report and Order in BC Docket No. 82-536, FCC No. 83-1154, 48 Fed. Reg. 
28445 (June 22, 1983); Second Report and Order in BC Docket No. 82-536, 97 
FCC 2d 23 (1984), recon. denied, FCC 84-313, 98 FCC 2d 433 (1984). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 216 1986 



Fairness Doctrine 217 

authorized the use of teletext by television licensees. 283 This 
system uses the vertical blanking interval for transmitting pages 
of text which are formatted on the users screen with the use of a 
decoder. Videotext is also a potential source of information. At 
the present time, this service has approximately 500,000 subscrib- 
ers. 284 As a final matter home computer systems have played a 
significant role in adding to the information services marketplace. 
However, we do not find these services to be significant contribu- 
tors to media diversity at this time. 

(c) Print Media 

123. As we observed in the Notice the overall number of 
broadcast facilities exceeds the total number of daily newspapers 
in the United States. This does not mean, however, that the print 
media is not a significant contributor to the information market- 
place. As of 1984, there were 1,701 daily newspapers in the 
country. 285 During this period, average circulation increased to 
62,544,503, an increase of 157,426 from 1983 levels. 

124. In analyzing the information marketplace, however, we 
agree with those commenters who felt that the Notice gave 
insufficient consideration to the importance of other print sources 
such as weekly and even monthly newspapers and magazines. 
According to the Notice, the total number of periodicals has 
increased from 6,960 in 1950 to 10,688 in 1982. As commenters 
such as MAP and UCC point out, these newspapers are signifi- 
cant source of information, especially local information, which is 
available to consumers in each market. 286 The viability of 
newspapers as an important information source is further illus- 
trated by the volume of advertising appearing in each medium. 
According to this criterion, advertising expenditures for newspa- 
pers exceeded both television and radio. 287 Moreover, the com- 



283 Report and Order in MM Docket No. 81-741, 48 Fed. Reg. 27054 (June 13, 
1983). 

284 Broadcasting, July 1, 1985, at 64. 

285 Editor and Publisher Yearbook, (1984) at VIII. The figures are based on 1983 
data and represent a decline of 10 newspapers when compared with 1982 
figures. However, this decline was due to the merger of 10 daily papers and 
therefore, does not evidence a net decrease in the number of daily newspapers. 
During this period, 8 daily newspapers were discontinued but this was offset by 
new entries into the market, IcL at V, 

2 ^See MAP/TRAC Comments, supra n.50 at 86-90; UCC Comments, supra n.170 

at 13. 
287 In 1983, the total advertising volume for the various media was approximately 

$20.1 million for newspapers, $16 million for television, $5,2 million for radio 



102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 217 1986 



218 Federal Communications Commission Reports 

bined advertising revenues for newspapers and magazines were 
greater than the combined total for television and radio. We 
believe that these data provide important evidence relative to the 
strength of newspapers and magazines as significant contributors 
to 1 the marketplace of ideas. ; 

3. Availability in the Information Market 

125. Several parties have argued that the increases in the 
number of information outlets do not necessarily attenuate the 
need for the fairness doctrine. 288 Specifically, these parties state 
that overall increases in information service outlets are not 
necessarily sufficient to provide each market with diverse and 
antagonistic sources of information. The argument is predicted on 
two assumptions. First it assumes that the growth of information 
sources nationwide has had no impact on local markets. Second it 
assumes .that these sources will not provide coverage to controver- 
sial issues of public importance. As noted below, we find the data 
upon which these assertions are based, flawed, and we are not 
persuaded by the logic of the arguments. 

126. On the record before us, we find that the nationwide 
development of these diverse information sources has had a direct 
impact on the availability of information in each media market. 
For example, even in small markets such as El Paso, Texas (ADI 
market No. 104), there are a significant number of media vioces. 
According to data submitted by NAB, this market has seven 
television stations, twenty seven radio stations, two MDS chan- 
nels, thirty thousand VCR's and cable penetration at 47 per- 
cent. 289 The most detailed refutation of this position appeared in a 
study conducted by Prof. Ralph Jennings. 290 The study sampled 
ten percent of the 3,926 communities in the United States which 
have at least one commercial or public radio station. It then 
inventoried each community's broadcast, newspaper, cable and 
multipoint distribution system and "examined the extent to which 
the communities share in the national communications wealth." 



and 4.1 million for magazines. Television and Cable Factbook, Services Volume 
No. 52 (1984) at 14. 

288 See, e.g., "Comments of Black Citizens for a Fair Media, Citizens Communica- 
tion Center, League of United Latin American Citizens, National Association of 
Better Broadcasting [hereinafter cited as "BCFM Comments"]; UCC Com- 
ments, supra n,170. 

289 NAB Comments, supra n.79 App. vol., App. A. at 49. 

290 R, Jennings, Diversity of Communications Facilities in American Communities, 
cited in UCC Comments, supra n.10 at App. B, and USCC Reply Comments, 
supra n.152 [hereinafter cited as "Jennings Study"]. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 218 1986 



Fairness Doctrine 219 

We have carefully reviewed the data contained in the study and 
disagree with the methodology employed therein. At the outset, 
the study does not appear to provide a representative sampling of 
media markets throughout the United States. Rather, the study 
focuses i primarily on small markets. Recognizing this problem, the 
study attempts to enlarge its sample by including 72 larger 
communities. However, the study itself recognizes that even with 
these communities the sample does not reflect the characteristics 
of the population as a whole. 291 

127. A second concern involves use of the "community" as the 
basic unit of analysis. The study assumes that a community is 
not being served unless a broadcast facility (or other information 
source) is located within the geographic boundaries of the 
community. As CBS correctly points out, the relevant inquiry is 
not what stations are licensed to a community, but rather what 
broadcast signals the community can actually receive. 292 In this 
regard, we note that the Commission has recognized that a 
broadcast licensee may serve communities which He outside the 
strict geographic boundaries of its community of license. 293 
Moreover, such methodology may underestimate the availability 
of broadcast facilities and other information services such as cable 
and local newspapers. 294 

128. On the record before us, we cannot find that there are a 
insufficient number of voices in local markets to warrant continu- 
ation of the fairness doctrine. As we observed previously, 
increases in signal availability for traditional broadcasting facili- 
ties — television and radio — by themselves attenuate the need 
for a government imposed obligation to provide coverage to 
controversial issues. The existence of a plethora of alternate 



291 Id. at 10. 

292 "Reply Comments of CBS, Inc." at 22 [hereinafter cited as "CBS Reply 
Comments"]. 

293 See, e.g., Report and Order in B.C. Docket No. 82-374, FCC 83-487, 54 RR 2d 
1343 (1983), recon. denied, 56 RR 2d 797 (1984); Report and Order in B.C. 
Docket No. 82-320, 93 FCC 2d 436 (1983), recon, denied, FCC 84-335 (released 
July 31, 1984). 

294 The following example illustrates the potential problems inherent in the study's 
analysis. The study reports the following cities as not having cable television 
service in their community: Birch Tree, Missouri and Marshall, North Carolina. 
However, each of these towns is served by a cable system in which the 
corporate headquarters of the cable system is located outside of the commu- 
nity. See Television and Cable Factbook, Services Volume No. 52 (1984) at 997 
and 1151. Similar concerns exist with respect to local newspapers. For example, 
the study reports that the town of Weston, Massachusetts did not have a local 
newspaper. However, the town is served by a weekly newspaper that covers 
local issues, but it is published in a neighboring town. See Way land/We s ton 
Town Crier (Weston Edition), July 3, 1985 at 1. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 219 1986 



220 Federal Communications Commission Reports 

electronic voices, as well as numerous locally oriented print voices, 
augments this argument. Further support for this conclusion can 
be found from the homogeneity of the various media systems. 
Thus, in communities with few television stations one can expect 
to jfind higher cable subscribership. For, example, the Jennings 
study found that cable was available in 82 percent of the 
communities surveyed. Similarily, in large urban areas with no 
cable systems, there are generally numerous television outlets. 
Moreover, data submitted by NAB confirms fungibility of the 
various information service technologies. 295 

129. Several commenters have argued that absent the fairness 
doctrine there will be no incentive for broadcasters to provide 
coverage to controversial issues of public importance. These 
parties also assert that the new electronic technologies are unable 
to address these types of issues, particularly at the local level. We 
are not persuaded by these arguments. 

130. We note that other information systems, such as the print 
media, devote a significant amount of time to controversial issues 
in the absence of a government imposed obligation to do so. For 
these media, the incentive to cover such issues is not the fear of 
government sanction, but rather economic necessity. Similar 
incentives exist for over-the-air broadcasting. Our experience with 
industry performance persuades us that radio and television 
broadcasters would be sufficiently motivated to provide coverage 
to controversial issues of public importance in the absence of 
fairness doctrine obligations. Indeed, assuming arguendo that 
television is the most relied upon information source, then there is 
a strong market incentive to cover such issues in response to the 
demand. 296 As we have observed in other proceedings, market- 
place forces are the primary determinants of information oriented 
programming. 297 Moreover, given our previous analysis regarding 
the chilling effect of the fairness doctrine, we believe it reasonable 



295 See NAB Comments, supra n.79 App. Vol., App. A at 48-63. 

296 Evidence of a marketplace demand for programming covering controversial 
issues of public importance can be seen in the employment patterns of news 
staffs after our television and radio deregulation decisions. A recent study of 
the effects of deregulation conducted by RTNDA found that: "[M]ost radio 
stations have not changed their news or public affairs staffing or programming 
as a result of deregulation. Most TV stations also plan to continue business as 
usual. News cutbacks have come mainly at radio stations in major markets 
where changes have drawn attention and accusations against deregulation. But 
while some news directors may have lost staff members because the FCC lifted 
its minimum requirements, other [sic] say they are doing a better job because 
of the greater freedom." RTNDA Communicator, May 1985 at 1. 

297 See generally, Deregulation of Television, supra n.177; Deregulation of Radio, 
supra n.215. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 220 1986 



Fairness Doctrine 221 

to expect an increase in the coverage of these types of issues. In 
any event, there is no reason to believe that there will be a decline 
in the coverage of controversial issues of public importance. 

131. Apart from the incentives of traditional broadcast facili- 
ties, we believe that other media systems will provide sufficient 
amounts of programming covering controversial issues of public 
importance. Cable television, for example, is already providing 
various informational programming such as CNN and the Finan- 
cial News Network. Moreover, many cable systems are originating 
their own programming and have local community access chan- 
nels. Increased availability of VCR's will also provide an impor- 
tant outlet for discussion of issues in each market. Most 
importantly, local newspapers will remain as an important source 
of locally oriented information. 298 All of these sources will make 
significant contributions to the marketplace of ideas. 

H. The Fairness Doctrine Can Not Be Justified on the Basis that 
It Protects Either Broadcasters or the Public from Undue 

Influence. 

132. As noted above, 299 the Commission historically justified 
the retention of the fairness doctrine on the sole basis that 
affirmative regulatory intervention was necessary to vindicate the 
interest of the public in obtaining access to diverse viewpoints on 
controversial issues of public importance. Our evaluation of the 
fairness doctrine both in terms of its efficacy and its continued 
need in the communications marketplace today is based upon this 
expressed regulatory objective. Several participants in this pro- 
ceeding, however, have argued that the retention of the doctrine 
furthers other regulatory goals. Specifically, these parties argue 
that there are legitimate "protective" functions which are pro- 
moted by the continued existence of the doctrine. In this section 
we will assess the merits of these arguments. 

133. Several commenters contend that retention of the fairness 
doctrine is useful as a "protection against outside pressures" 300 
by groups within the community which would otherwise exert 



298 In light of our conclusion that sufficient incentives exist to provide coverage to 
controversial issues among the traditional broadcast media, reliance on 
alternate electronic technology systems to provide coverage to such issues is 
not a necessary element in our decision. We note, however, that these 
information sources are significant contributors of issue oriented information. 
In this regard, their performance makes the elimination of the fairness doctrine 
even more compelling. 

299 See 11 4, 23, supra. 

300 " Comments of the United States Catholic Conference" at 19 [hereinafter cited 
as "USCC Comments"]. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 221 1986 



222 Federal Communications Commission Reports 

undue influence on the editorial decisionmaking of broadcasters. 
Absent the fairness doctrine, these parties contend that broad- 
casters will simply "cave-in M to the pressures of advertisers, 301 
political action committees, 302 or other powerful groups in the 
community 303 who do not wish to have particular controversial 
viewpoints expressed. 304 

134. We take issue with the assumption that intrusive govern- 
mental regulation is necessary to "protect" broadcasters from 
groups which allegedly attempt to influence their programming 
decisions. The First Amendment forbids governmental interven- 
tion in order to "protect" print journalists and we believe that 
broadcast journalists are in no greater need of "protection" than 
their counterparts in the print media. We think it telling, in this 
regard, that broadcasters themselves are not seeking this protec- 
tion. Moreover, the framework of broadcast regulation is predi- 
cated in large part upon reliance on the editorial discretion of 



301 See, e.g., id; DNC Comments, supra n.203 at 17; See also USCC Reply 
Comments, supra n.152 at 9. 

Indeed, without providing any support for its assertion, the Democratic 
National Committee ("DNC") argues that "the potential fear [of broadcasters] 
of offending a power group in the community that buys advertisements was the 
reason the Fairness Doctrine was adopted in the first place." Id. at 17. As 
described above, the articulated reason for the establishment of the fairness 
doctrine was to further access by the public to diverse viewpoints on 
controversial issues of public importance. Our historic justification of this 
doctrine was not based upon an expressed concern that regulatory intervention 
was necessary to counterbalance the alleged influence exerted by advertisers— 
or any other group— on licensees with respect to their decisions concerning the 
broadcast of controversial issue programming. 

302 DNC Comments, supra n.203 at 15-16. 

303 The most expansive articulation of this argument was expressed by Ecumedia. 
In its Reply Comments, it stated that the fairness doctrine provided broadcast 
journalists with the means to deflect pressure exerted by "external sources 
including politicians, public officials, corporations, advertisers, organized com- 
munity groups and outspoken individuals [as well as] [ijnternal pressure from 
station management or parent companies. "Reply Comments of Ecumedia," at 
19. [hereinafter cited as "Ecumedia Reply Comments"]. 

304 p or example, asserting that the fairness doctrine operates as an effective 
"insulating" mechanism, DNC argues that: 

The Fairness Doctrine actually protects a broadcaster who does not want to 
take this safe course of cozy relations with its community's financial 
elite .... 

Many broadcasters go to great lengths to present issues of public 
importance and offer their audiences balanced coverage. For them, the 
Fairness Doctrine has been a valuable shield. When pressured by demands 
from established powers in its community to suppress coverage of an 
unpopular issue or to support their political points of view, a broadcaster 
today can simply point to his or her responsibilities under the Doctrine. 

DNC Comments, supra n.203 at 18. 
102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 222 1986 



Fairness Doctrine 223 

broadcast journalists. As the Supreme Court has stated, the 
Communications Act "manifests] the intention of Congress to 
maintain a substantial measure of journalistic independence for 
the broadcast licensee." 305 Consequently, consistent with their 
public interest responsibilities, broadcasters are accorded wide 
discretion under the Communications Act with respect to their 
programming decisions. 306 We are not convinced that broadcasters 
have been unduly pressured by groups within the community in 
the past. Moreover, in our view, the speculative notion that, 
absent the fairness doctrine, they will be unable to resist undue 
pressure in the future is a wholly inadequate basis upon which to 
justify the continued existence of rules which intervene in the 
editorial decisionmaking process of broadcast journalists. Rather, 
we deem it appropriate to rely, as we have in the past, upon the 
good faith judgment of the licensee regarding the selection of 
programming material. 307 

135. In addition, several commenters, in support of the fairness 
doctrine, argue that the doctrine serves to safeguard the public 
against unwarranted influence by what they perceive as biased 
broadcast reporting. 308 Although the commenting parties differ 
among themselves in their perception of the bias to which they 
object, 309 they believe that retention of the fairness doctrine is 



305 Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 
U.S. at 116. Indeed, the Supreme Court, in addressing the editorial discretion 
of broadcast journalists under the Communications Act, has recognized that 
"[f]or better or worse, editing is what editors are for; and editing is selection 
and choice of material/' Id. at 124. 

306 The Court has asserted that: 

In the delicate balancing historically followed in the regulation of broadcast- 
ing Congress and the Commission could appropriately conclude that the 
allocation of journalistic priorities should be concentrated in the licensee 
rather than diffused among many. This policy gives the public some 
assurance that the broadcaster will be answerable if he fails to meet its 
legitimate needs* 

Id. at 125. 

307 Reliance upon the editorial discretion of broadcast licensees also furthers First 
Amendment principles. As the United States Supreme Court has stated: 

Indeed, if the public's interest in receiving a balanced presentation of views is 
to be fully served, we must necessarily rely in large part upon the editorial 
initiative and judgment of the broadcasters who bear the public trust. 

FCC v. League of Women Voters of California, 104 S.Ct. at 3117 (emphasis 
added). 

308 See, e.g., "Comments of the American Legal Foundation" at 10-14 [hereinafter 
cited as "ALF Comments"], 

309 There appears to be a sharp divergence of opinion among the commenters 
making this argument as to the precise nature of the alleged "bias." For 
example, one party asserts that the bias of the broadcast media is liberal (Id. at 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 223 1986 



224 Federal Communications Commission Reports 

appropriate to prevent broadcasters from presenting biased or 
one-sided programming. The argument apparently is predicated 
upon the presumption that the requirement to provide " balanced" 
controversial issue programming is not merely a means to assure 
access to the marketplace of ideas but is itself a valid regulatory 
objective. 

136. Balance may be a laudable editorial goal, but there are 
grave dangers when the government tries to strike that balance. 
First, as we have just noted above, determining what constitutes 
balanced programming is a very subjective endeavor. Second, as 
we have described, having the government attempt to achieve 
balance by means of enforcing the fairness doctrine results in a 
chilling effect to the ultimate detriment of the listening public. 
Third, there are the inherent dangers of an arm of the federal 
government influencing the content of programming in an at- 
tempt to guarantee balance. Further, the First Amendment does 
not require and may well not permit a neat apportionment, 
dictated by the government, in the marketplace of ideas, with 
equal space assigned to every viewpoint. As the Supreme Court 
noted in First National Bank v. Bellotti: 

[T]he people in our democracy are entrusted with the responsibility for 
judging and evaluating the relative merits of conflicting arguments. They 
may consider, in making their judgment, the source and credibility of the 
advocate. But if there be any danger that the people can not evaluate the 
information and arguments advanced by appellants, it is a danger 
contemplated by the Framers of the First Amendment. 310 

The fact that a particular viewpoint may have the capability to be 
extremely influential or offensive does not mean that it is 
accorded a lesser degree of First Amendment protection than the 
expression of less influential or more reasonable opinions, 311 
Therefore, we do not believe that the "protection" of the viewing 
and listening public against even allegedly one-sided presentations 



11); another participant argues that the media is biased "toward the business 
and commercial community." "Comments of the Maine Nuclear Referendum 
Committee" at 1. Still another commenter contends that the broadcast media 
unduly favors the views of the alleged "Zionist/Israeli lobby." Letter to the 
Chairman, Federal Communications Commission from Richard Hill and Donald 
W. Harris (Oct. 20, 1984). 

310 First National Bank of Boston v. Bellotti, 435 U.S. at 791-92. 

311 As the Supreme Court has asserted, "[t]he Constitution 'protects expression 
which is eloquent no less than that which is unconvincing.' " Id., quoting 
Kingsley International Pictures Corp. v. Regents, 360 U.S. at 689. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 224 1986 



Fairness Doctrine 225 

affords a justifiable basis for the retention of the fairness 
doctrine. 312 

/. Summary 

i 

137. We believe the fairness doctrine is an unnecessary and 

detrimental regulatory mechanism. While we recognize that the 
fairness doctrine has been a central tenet of broadcast regulation 
for more than fifty years, we believe that we have a statutorily 
mandated duty to reassess the propriety of even long standing 
policies in light of changes in the broadcast marketplace and 
evidence that the policy may not further the public interest. After 
careful evaluation of the evidence of record, our experience in 
enforcing the fairness doctrine, and fundamental constitutional 
principles, we find that the fairness doctrine disserves the public 
interest. 

138. Three factors form the basis for this determination. First, 
in recent years there has been a significant increase in the number 
and types of information sources. As a consequence, we believe 
that the public has access to a multitude of viewpoints without 
the need or danger of regulatory intervention. 

139. Second, the evidence in this proceeding demonstrates that 
the fairness doctrine in operation thwarts the laudatory purpose it 
is designed to promote. Instead of furthering the discussion of 
public issues, the fairness doctrine inhibits broadcasters from 
presenting controversial issues of public importance. As a conse- 
quence, broadcasters are bundened with counterproductive regula- 
tory restraints and the public is deprived of a marketplace of 
ideas unencumbered by the hand of government. 

140. Third, the restrictions on the journalistic freedoms of 
broadcasters resulting from enforcement of the fairness doctrine 
contravene fundamental constitutional principles, accord a danger- 
ous opportunity for governmental abuse and impose unnecessary 
economic costs on both the broadcasters and the Commission. 
Finally, we believe the record in this proceeding raises significant 



312 Justice Douglas has stated that: 

The implication that the people of the country— except the proponents of the 
theory— are mere unthinking automatons manipulated by the media, without 
interests, conflicts, or prejudices is an assumption which I find quite 
maddening. The development of constitutional doctrine should not be based 
on such hysterical overestimation of media power and underestimation of the 
good sense of the American public. 

Columbia Broadcasting System, Inc. v. Democratic National Committee , 412 
U.S. at 152 n.3. 

102 F.C.C 2d 



HeinOnline — 102 Book 1 F.C.C.2d 225 1986 



226 Federal Communications Commission Reports 

issues regarding the constitutionality of the fairness doctrine in 
light of First Amendment concerns. 

IV. Modifications Short of Repeal and Alternatives to Current 
I Enforcement of the Fairness Doctrine 

141. In addition to those comments which favored complete 
repeal or retention of the fairness doctrine, a number of proposals 
were offered to modify the doctrine's scope or otherwise limit its 
application. 313 For example, several commenters urged elimination 
of or limitation on the scope of the Cullman doctrine corollary to 
the fairness doctrine. 314 Specifically, ABC proposed that ballot 
proposition advertising and advertising by independent political 
committees should be exempted from the Cullman doctrine. In 
lieu of Cullman, ABC recommended an approach modeled on the 
Commission's Zapple doctrine, 315 under which reasonable 
amounts, but not free, response time would be required as a 
means of achieving the Commission's fairness objectives. It was 
also urged by some commenters that all advertising be exempted 
from application of the fairness doctrine. Additionally, a two year 
moratorium on enforcement of the fairness doctrine was proposed 
as a means of empirically evaluating the impact of the doctrine on 
broadcast speech. 

142. Beyond the above suggestions, the record reflects a 
number of proposals which have been previously considered by 
the Commission in connection with its fairness doctrine require- 
ments. In this regard, Henry Geller again recommended that the 
current contemporaneous, case-by-case review of fairness doctrine 
complaints should be abandoned in favor of examining fairness 
compliance solely at renewal. It was also proposed that broadcast 
licensees be permitted to satisfy their fairness doctrine obligations 
by providing on-air "access" time to the public. 

143. While these various proposals may present possibilities in 

313 Several parties addressed elimination or retention of the Personal Attack Rule. 
However, as we stated in the Notice in this proceeding, our review here is 
limited to the fairness doctrine and does not include the Personal Attack Rule, 
which is the subject of a separate, pending proceeding. Notice, supra n.l % 9 
n.10 and Repeal or Modification of the Personal Attack and Political Editorial 
Rules , 48 Fed. Reg, 28295 (June 21, 1983), 

314 For a discussion of the Cullman doctrine and its evolution, see n.l 19 supra. 

m Nicholas Zapple, 23 FCC 2d 707 (1970). The Zapple doctrine requires that if 
supporters, or spokesmen, for one political candidate appear on a broadcast 
station, supporters for opposing candidates must be afforded similar treatment. 
However, the doctrine only applies to major political parties during formal 
campaign periods and does not require the provision of free time. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 226 1986 



Fairness Doctrine 227 

terms of reducing the intrusive impact of the fairness doctrine, we 
do not believe it is approproate to consider them at this time, 
given our intention to defer action on the fairness doctrine 
generally, pending review of the record in this proceeding by 
Congress, ; 

V. Agency Authority to Modify or Repeal the Fairness Doctrine 

144. Given our policy conclusions as to the continued undesir- 
ability of the fairness doctrine, the question arises whether we 
have the authority to eliminate or substantially modify the 
fairness doctrine. In this regard, issues pertaining to our statu- 
tory authority were clearly raised in the Notice 316 and addressed 
by numerous commenting parties in this proceeding. As we 
observed in the Notice, we do not believe that Congress explicitly 
codified the fairness doctrine prior to the 1959 Amendments to 
the Communications Act. Nor do we find that the fairness 
doctrine necessarily inheres in the public interest standard of the 
Communications Act. The 1959 amendments to the Communica- 
tions Act pose a more difficult question. For the reasons we have 
earlier stated, however, we need not reach this question. 317 
Rather, we will afford Congress an opportunity to review the 
record adduced in this proceeding. In order to provide a full and 
complete record in connection with such review, we have set forth 
below the arguments in this proceeding with respect to codifica- 
tion of the fairness doctrine. 

A Pre-1959 Period 

145. We begin our examination of the legal authority of the 
Commission to eliminate or modify the fairness doctrine in the 
period prior to the 1959 amendments to ascertain whether or not 
the doctrine was codified either explicitly within the Communica- 
tions Act or implicitly as part of the general obligation of 
broadcasters to serve the public interest. 318 In this regard, we 
note at the outset that neither the Radio Act of 1927 nor the 
Communications Act of 1934 contained any explicit provisions 
indicating that Congress intended to mandate that broadcasters 



z^See Notice, supra n.l at 111 96-120, 

317 See t 7, supra. 

318 For a detailed examination of the pre-1959 period See Staff Study of the House 
Committee on Interstate and Foreign Commerce, Legislative History of the 
Fairness Doctrine, 90th Cong., 2d Sess. (Comm. Print. 1968) [hereinafter cited 
as "Manelli Report"]. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 227 1986 



228 Federal Communications Commission Reports 

provide fairness in their coverage of controversial issues of public 
importance. 

146. Indeed, in 1927 Congress specifically addressed the ques- 
tion of whether or not there was a need to statutorily require 
fairness in the discussion of controversial issues of public 
importance. When enacting Section 18 of the Radio Act of 
1927/ 319 the forerunner of Section 315 of the present Communica- 
tions Act, Congress had before it in the House of Representatives 
language in the bill, H. R. 9971 of the 69th Congress, that would 
have required broadcasters to provide equal access to "both the 
proponents and opponents of all political questions or issues." 320 
At the same time, the Senate was considering a provision 
recommended to it by its Commerce Committee which would have 
prohibited broadcasters from discriminating in the use of their 
facilities "for the discussion of any question affecting the 
public." 321 Neither of these provisions survived the House-Senate 
Conference. The Conferees rewrote the radio bill without the 
proposed fairness- type language. 322 Since there was no explana- 
tion in the Conference Report as to why the fairness-type 
language was excluded, we must conclude that Congress did not 
desire to explicitly mandate a fairness type obligation on broad- 
casters at that time. 

147. Section 18 of the Radio Act of 1927 became Section 315 of 
the Communications Act of 1934. Yet, before it was encacted into 
law, attempts were made in the Senate to enlarge the scope of 
this section to impose a fairness standard on any discussion of 
public questions to be voted upon at an election. Specifically, the 
language proposed in the Senate would have required that: 

if any licensee shall permit any person to use a broadcasting station in 
support of or in opposition to any candidate for public office, or in the 
presentation of views on a public question to be voted upon at an election, 
he shall afford equal opportunity to an equal number of other persons to 
use such station in support of an opposing candidate for such public office, 
or to reply to a person who has used such broadcasting station in support 
of or in opposition to a candidate, or for the presentation of opposite views 



319 Section 18 of the Radio Act of 1927 read, in pertinent part: 

If any licensee shall permit any person who is a legally qualified candidate 
for any public office to use a broadcasting station, he shall afford equal 
opportunities to all other such candidates for that office in the use of such 
broadcasting station .... 

(44 Stat. 1170). 

320 67 Cong. Rec. 5,560-61 (1926). 

321 S. Rep. No. 772, 69th Cong., 1st Sess. (1926). 

322 H. R. Rep. No. 1886, 69th Cong., 2d Sess. (1927). 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 228 1986 



Fairness Doctrine 229 

on such public questions. Furthermore, it shall be considered in the public 
interest for a licensee, so far as possible, to permit equal opportunity for 
the presentation of both sides of public questions. 323 

In the House, the Committee on Interstate and Foreign Com- 
merce reported a substitute bill that did not contain the provision 
providing for ' 'equal opportunity" in the discussion of public 
questions. 324 Minus the proposed fairness-type language, the 
Conference Committee incorporated Section 18 verbatim as Sec- 
tion 315 of the Communications Act of 1934. 325 Once again 
attempts to include fairness-type language explicitly into the 
Communications Act had failed. 

148. The 1952 amendments were the last revisions to Section 
315 of the Communications Act prior to 1959. The 1952 Amend- 
ments to the Communications Act added another provision to 
section 315 which provided for uniformity of charges for political 
time vis-a-vis other uses. While in the House of Representatives, 
an amendment was offered to alter Section 315 to extend the 
"equal opportunity" provision to include statements made by 
authorized spokesmen of candidates, 326 this language was omitted 
from the bill by the Conferees. 327 Given these various attempts to 
legislatively mandate some form of fairness standard, it is 
apparent that, prior to 1959 at least, Congress had steadfastly 
refused to statutorily require broadcasters to provide fairness in 
the coverage of controversial questions and issues of public 
concern, 

149. Despite the lack of legislative support for a mandatory 
fairness obligation, as evidenced in these early expressisons of 
legislative intent by Congress in not explicitly codifying the 
fairness doctrine, 328 the Federal Radio Commission and later the 



323 See S. Rep. No. 781, 73d Cong., 2d Sess. (1934) This same "fairness" type 
provision in H. R. 7716, had been introduced during the 72d Congress, H. Rep. 
No. 2106, 72d Cong., 2d Sess. 6 (1933). This bill was passed by Congress, but 
subjected to a pocket veto by President Hoover. See Manelli Report, supra 
n.318. 

324 h. R. Rep. No. 1850, 73d Cong., 2d Sess. (1934). 

325 See H. R. Rep. No. 1918, 73d Cong., 2d Sess. 49 (1934). 

326 98 Cong. Rec. 7415 (1952). 

327 h. R. Rep. No. 2426, 82d Cong., 2d Sess. (1952). This omission was particularly 
relevant since by this time the Commission had developed the fairness doctrine 
pursuant to the public interest standard of the Communications Act. 

328 Indeed, as pointed out in the Manelli Report, supra n.318, some of the failures 
to enact fairness type legislation "cast serious doubts on the proposition that 
the Fairness Doctrine, at least in substance, is a necessary corollary of the 
'public interest' standard contained in the Radio Act, and carried forward into 
the 1934 Communications Act." Id. The United States Supreme Court, 
however, has admonished that "unsuccessful attempts at legislation are not the 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 229 1986 



230 Federal Communications Commission Reports 

Federal Communications Commission imposed fairness obligations 
upon broadcasters. As early as 1929, the Federal Radio Commis- 
sion in Great Lakes Broadcasting Co,, 329 declared that "[i]n so far 
as a program consists of discussions of public questions, public 
interest requires ample play for the free and fair competition of 
opposing views, and the Commission believes that the principle 
applies , . . to all discussions of issues of importance to the 
public/' 330 The Federal Communications Commission followed its 
predecessor by requiring that licensees cover both sides of 
controversial issues. 331 These decisions culminated in the issuance 
of the definitive statement of the fairness doctrine obligations for 
broadcasters. It was in the 1949 Report of Editorializing by 
Broadcast Licensees, 332 that the Commission fully set forth the 
two prong requirements of the fairness doctrine. 

150. The fairness doctrine, as enunciated by the Commission in 
the 1949 Fairness Report, was not developed pursuant to any 
specific command in the Act requiring that a broadcaster "devote 
a reasonable percentage of time to the coverage of controversial 
public issues*' or that the broadcaster provide fairness in the 
coverage of such issues. Rather, it was promulgated pursuant to 
the "expansive" powers delegated by Congress under the Act in 
order that the Commission might regulate the "field of enterprise 
the dominant characteristic of which was the rapid pace of its 
unfolding." 333 In particular, the fairness doctrine developed under 
the general authority of the Commission to devise regulations to 
insure licensees broadcast in the "public interest, convenience, 
and necessity." 334 Based upon its perceptions of the communica- 



best guides to legislative intent." Red Lion Broadcasting Co. v. FCC, 395 U.S. 
at 381n.ll. 

329 3 FRC 32 (1929), rev'd on other grounds, 37 F.2d 993 (D.C. Cir.), cert 
dismissed, 281 U.S. 706 (1930). 

330 Id. at 33. 

331 See Young People's Association for the Propagation of the Gospel, 6 FCC 
178(1938). Moreover, the Commission in Mayflower Broadcasting Corp., 8 FCC 
333 (1941), gave an even more expansive meaning to the public interest 
standard while at the same time giving a more restrictive view of broadcasters' 
latitude under that standard. Specifically, the Commission determined that "as 
one licensed to operate in the public domain the licensee has assumed the 
obligation of presenting all sides of important public questions, fairly, 
objectively and without bias .... These requirements are inherent in the 
conception of public interest set up by the Communications Act as the criterion 
of regulation." Id. at 340. While this decision was overturned because of its 
specific edict against editorializing by broadcasters, its interpretation of the 
public interest standard was carried forward in subsequent Commission cases. 

332 See 1949 Fairness Report, supra n.6. 

333 National Broadcasting Company v. United States, 319 U.S. at 219. 

334 See 47 U.S.C. §§ 303, 307(a), 309(a), 310(d). According to the United States 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 230 1986 



Fairness Doctrine 231 

tions field in 1949, the Commission determined that "the public 
interest requires that the licensee must operate on a basis of 
overall fairness, making his facilities available for the expression 
of contrasting views of all responsible elements in the community 
on the v&rious issues which arise." 335 Thus, the Commission from 
the inception of the fairness doctrine has recognized that the sole 
statutory basis for the doctrine was the general duty of licensees 
to serve the public interest. 336 

151. Proponents of the fairness doctrine contend that the 
Commission can not eliminate the doctrine because it is an 
inherent and necessary element of the general public interest 
standard. 337 We believe, however, that the obligations of licensees 
under the public interest standard, including the fairness doctrine, 
were never meant to be unsusceptible to change. Nor do we 
conclude that the sole power to make such alterations in 
Commission policies promulgated pursuant to the general public 
interest standard rests with Congress. This conclusion is aptly 
supported by the United States Supreme Court which has long 
recognized that the public interest standard is not inflexible, but 
is subject to the "rapidly fluctuating factors characteristic of the 
evolution of broadcasting and of the corresponding requirement 
that the administrative process possess sufficient flexibility to 
adjust itself to these factors." 338 Over the years the Commission 
has often exercised its expert judgment and administrative 
experience to change policies once viewed by the Commission to 
be in the public interest. Given that the Commission is the expert 
agency in the field, courts have upheld the Commission's elimina- 
tion of policies which were based solely on the public interest 
standard. 339 In so doing, the courts have generally relied heavily 
on the Commission's judgment regarding the best means to 
implement the broad public interest standard. 340 Indeed, the 
United States Supreme Court has posited that the Commission 



Supreme Court the public interest criterion "serves as a supple instrument for 
the exercise of discretion by the expert body which Congress has charged to 
carry out its legislative policy." FCC v. Pottsville Broadcasting Co., 309 U.S. 
134, 138 (1940). 

335 1949 Fairness Report, at 1250. 

336 Id. at 1254. 

337 See, e.g., BCFM Comments, supra n.288 at 6-12; Geller/Lampert Comments, 
supra n.83 at 7-10; GM Comments, supra n.203 at 36-40; MAP/TRAC 
Comments, supra n.50 at 13-19; and Mobil Comments, supra n.128 at 12-17. 

338 FCC v. Pottsville Broadcasting Co., 309 U.S. at 138. 

339 See, e.g., FCC v. WNCN Listeners Guild, supra n.193. 

340 See FCC v. National Citizens Committee for Broadcasting, 436 U,S- at 810 and 
FCC v. WNCN Listeners Guild, supra n.193; see also UCC v. FCC, supra n.193 
and Chisholm v. FCC, 538 F.2d 349, 357 (D. C. Cir 1976). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 231 1986 



232 Federal Communications Commission Reports 

should not hesitate to abandon existing policies "[i]f time and 
changing circumstances reveal that the 'public interest' is not 
served by application of the regulations." 341 

152, As we have already determined, as detailed above, the 
fairiiess doctrine no longer serves the public interest. Accordingly, 
if the only statutory basis for the fairness doctrine was the 
general public interest standard, the Commission upon a ratio- 
nally based and clearly articulated finding would possess suffi- 
cient authority to abolish the doctrine. 

B. The 1959 Amendments to the Communications Act 

153. In 1959 Congress once again amended Section 315 of the 
Communications Act. 342 Primarily, the purpose of these amend- 
ments was to create an exemption from Section 315(a)'s equal 
opportunity requirement for certain types of news programs. 
After accomplishing its primary purpose in enacting the amend- 
ments, Congress set forth at the end of Section 315(a) a new 
proviso which apparently references the general fairness doctrine. 
In the Noticed we offered three possible scenarios as to the 
possible statutory implications of the language espoused in the 
1959 Amendments to the Communications Act. One construction 
of the amendments is that they were an explicit codification of 
the fairness doctrine in its entirety. The second possible interpre- 
tation is that the 1959 amendments only codified the fairness 
doctrine with respect to the political broadcasting realm to ensure 
that the purposes of the equal opportunities requirements would 
not be defeated by abuse of the newly created exemptions. A final 
construction is that Congress at that time did not codify the 
fairness doctrine at all, but merely acknowledged and preserved 
the Commission's policy in this area without statutorily mandat- 
ing its continuance. 344 According to the arguments of the different 
commenting parties, evidence supporting all three propositions 
can be found in the statutory language of Section 315, as 
amended in the 1959 amendment to the Communications Act, its 
legislative history, subsequent court and legislative interpreta- 
tions, as well as our own past interpretations. 

341 National Broadcasting Co. v. United States, 319 U,S, at 225. 

342 See Act of September 14, 1959, §1, P. L. 66-274, 73 Stat. 556, amending 47 
U.S.C. §315(a). 

343 See Notice, supra n.l at 11 99. 

344 While different permutations of these constructions of the statutory implica- 
tions of the 1959 amendments exist, we believe these three to be the most 
plausible. 

102 F.aC. 2d 

HeinOnline — 102 Book 1 F.C.C.2d 232 1986 



Fairness Doctrine 233 

1. The Statutory Language 

154. We begin with the language in the statute itself. In this 
regard, we note that the United States Supreme Court has 
specif ic'ally concluded that "in determining the scope of a statute, 
one is to look first at its language' J and "[a]bsent a clearly 
expressed legislative intention to the contrary, that language 
must ordinarily be regarded as conclusive." 345 Of peculiar rele- 
vance to our inquiry is the last sentence of Section 315(a) which 
provides that: 

Nothing in the foregoing sentence shall be construed as relieving broad- 
casters, in connection with the presentation of newscasts, news interviews, 
news documentaries, and on-the-spot coverage of news events, from the 
obligation imposed upon them under this Act to operate in the public 
interest and to afford reasonable opportunity for the discussion of 
conflicting views on issues of public importance. 346 (emphasis added) 

Although this language appears clearly to reference the fairness 
doctrine obligation, its precise statutory implications are unclear* 
In this connection, several parties argued that this language could 
be read as a Congressional enactment of the fairness doctrine 
since its wording is quite similar to the language found in the 
second prong of the fairness doctrine as enunciated in the 1949 
Fairness Report, Contrarily, other commenters took the position 
that Congress is amending Section 315 desired to make clear that 
it had not disturbed the Commission's fairness doctrine policy, 
but did not mandate its continuance. Major commenting parties 
have advanced strong arguments on both sides of this contro- 
versy as to the precise meaning to be accorded this language. 347 
Commenters, such as the National Telecommunications and Infor- 
mation Administration (NTIA), assert that "[o]n its face Section 
315(a), as amended in 1959, indicates that Congress understood 
the Fairness Doctrine to be embodied in the Federal Communica- 



346 North Dakota v. United States, 460 U.S. 300, 312 (1983), quoting Consumers 
Products Safety Commission v. GTE Sylvania, Inc., 447 U,S. 102, 108 (1980). 
See also United States v. Yermian, 104 S. Ct. 2936 (1984) and American 
Tobacco Co, v. Patterson, 456 U.S. 63, 68 (1982). 

346 47 U.S.C. §315(a) (1984), 

347 Some Commenters contend that the language in the last sentence of Section 
315(a) specifically addresses itself to fairness regarding "controversial issues" 
in general. See, e.g., MAP/TRAC Comments, supra n,50 at 48. Other parties 
point out the Congress spoke in terms of the obligation as being "under this 
Act" this they contend provides support for the argument that the fairness 
doctrine is merely a Commission policy developed pursuant to delegated 
authority under the general public interest standard of the act and not to 
anything directly in the Act. See, e.g., CBS Comments, supra n.83 at 110-111. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 233 1986 



234 Federal Communications Commission Reports 

tions Act." 348 Likewise, other proponents have found the language 
in the last sentence of section 315(a) to ''plainly" mean that 
Congress intended to codify the fairness doctrine. 349 

155. On the other hand the RTNDA contends that "[o]n its 
face this language provides only that the amendments should not 
be construed to relieve broadcasters of fairness obligations; it 
neither states nor implies that Congress intended to change in 
any way the nature of the statutory authorization for the 
doctrine." 350 Moreover, opponents of the fairness doctrine argue 
that if Congress had intended this language to codify the fairness 
doctrine, it would have made its intent clear, as it has done in 
many other enactments. 351 Because the "plain" language of the 
statute has been interpreted to stand for more than one proposi- 
tion, we examined the legislative history of the 1959 amend- 
ments to ascertain congressional intent. 352 

2. Legislative History 

156. Congress in the 1959 amendments to Section 315 was 
responding in an expedited fashion to overturn the Commission's 
Lar Daly decision and avoid its possible ramifications. 353 In Lar 
Daly, the Commission had rules that Section 315's "equal 
opportunities" requirements applied to appearances of political 
candidates on newscasts. 354 Subsequently, broadcasters warned 
that if Congress did not act to correct this novel Commission 



348 "Comments of the National Telecommunications and Information Administra- 
tion" at 5 [hereinafter cited as "NTIA Comments"]. 

349 See, e.g., MAP/TRAC Comments, supra n.50 at 31-34; Geller/Lampert Com- 
ments, supra n.83 at 4; and Ecumedia Reply Comments, supra n.39 at 7-9. 

350 RTNDA Comments, supra n.141 at 13. Similarly, NBC argues that this 
language was merely a "savings clause" in that Congress "left pre-existing 
law— the Commission's authority to interpret the 'public interest' standard of 
the Federal Communications Act— undisturbed." NBC Comments, supra n.86 at 
102. See also CBS Comments, supra n.83. 

351 See NBC Comments, supra n.86 at 105 (NBC points out that Congress made 
explicit the codification of a Commission policy when it enacted §317 requiring 
the public announcement of any sponsorship of a political or other controversial 
broadcast.) See also CBS Comments, supra n.83 at 111. 

352 As the United States Circuit Court of Appeals for the District of Columbia 
Circuit has stated, *'[c]ons truing a statutory term, however, requires more than 
a superficial and isolated examination of the statute's plain words. Ascertaining 
congressional intent requires us to examine the 'context in which the words are 
set— the statute's purpose, structure, and history' . . . . " Multi-State Communi- 
cations, Inc. v. FCC, 728F.2d 1519, 1522 (D. C. Cir. 1984) quoting Natural 
Resources Defense Council, Inc. v. EPA, 725 F.2d 761, 769 (D.C, Cir. 1984). See 
also Viacom International, Inc. v. FCC, 672 F.2d 1034, 1040 (2d Cir. 1982). 

353 Lar Daly, 26 FCC 715 (1959). 

354 id. 



102 F.C.C. 2d 



HeinOnline' — 102 Book 1 F.C.C. 2d 234 1986 



Fairness Doctrine 235 

interpretation of Section 315 the result might be a blackout of 
radio and television news coverage of political campaigns, includ- 
ing the upcoming national political conventions. 355 To prevent 
such an occurrence, Congress moved swiftly to enact legislation 
providing exemptions for news-type programming. Congress was 
mainly concerned with overturning the Commission's decision. 
Consequently, both the original bills drafted in the House of 
Representatives and Senate dealt primarily with correcting 
through legislation the Lar Daly decision. 356 Accordingly, the 
legislative history lacks clear record evidence demonstrating a 
reasoned consideration of the fairness doctrine which would 
indicate an intent by Congress to codify the doctrine. While there 
do exist scattered references to the obligations of broadcasters 
under the public interest standard to present both sides of 
controversial public issues by some members of Congress, there 
was no significant discussion of the Commission's fairness doc- 
trine. 

157. However, the Senate Committee Report— probably in re- 
sponse to concerns voiced by the Commission and the Department 
of Justice— provided that: 

In recommending this legislation, the committee does not diminish or 
affect in any way Federal Communications Commission policy or existing 
law which holds that a licensee's statutory obligation to serve the public 
interest is to include the broad encompassing duty of providing a fair 
cross-section of opinion in the station's coverage of public affairs and 
matters of public controversy. 357 (emphasis added). 

This language appears to suggest that the Senate Committee did 
not wish to abrogate the Commission's policy developed pursuant 
to the Commission's delegated authority under the general public 
interest standard of the Act. It is argued that this language 
implies that the Senate did not intend to change the broadcasters 

35 5 See, e.g., 105 Cong. Rec. 14,447 (1959) (Remarks of Senator Hartke). 

36 6 See S. Rep. No. 562, 86th. Cong., 1st Sess. (1959) and H. R. Rep. No. 802, 
86th. Cong., 1st Sess. (1959). 

357 S. Rep. No. 562 at 13. The Senate Committee specifically included a letter from 
the Department of Justice suggesting that Congress in amending section 315 
should not abolish fairness obligations. Specifically, the Department of Justice 
stated that "care should be taken lest present requirements of fair treatment of 
public issues be weakened." The Department added that "under existing law, 
the Commission has held that a licensee's statutory obligation to serve the 
public interest includes the broad all-encompassing duty of providing a fair 
cross-section of opinion in the station's coverage of public affairs and other 
matters of controversy. This general fairness standard is presently applicable to 
political broadcasting not coming within the coverage of section 315." Id. at 19 
(citations omitted). 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 235 1986 



236 Federal Communications Commission Reports 

existing statutory obligation to provide fairness in the coverage of 
controversial issues of public importance. This does demonstrate 
that the Senate was ambivalent, at least initially, as to whether 
the fairness doctrine was a Commission policy that was grounded 
in the statutory obligation of broadcasters to serve the public 
interest. It may also suggest that Senate concerns focused 
primarily upon the doctrine's role in ensuring fair coverage of 
candidates should the "news" exemption to Section 315 be 
enacted. 

158. When the bill came up for debate in the Senate, a floor 
amendment was offered by Senator Proxmire. This amendment 
would have added to section 315 a new provision providing that: 

but nothing in this sentence shall be construed as changing the basic 
intent of Congress with respect to the provisions of this Act, which 
recognizes that television and radio frequencies are in the public domain, 
that the license to operate in such frequencies requires operation in the 
public interest, and that in newscasts, news interviews, news documenta- 
ries, on-the-spot coverage of news events, . . . all sides of public controver- 
sies shall be given as equal an opportunity to be heard as is practically 
possible. 358 

Upon a recommendation by Senator Pastore the phrase "as equal 
an opportunity" found in the last part of the Proxmire amend- 
ment was revised to read "as fair an opportunity." 359 Senator 
Pastore in offering this alternation explained that this new 
language "merely expresses the philosophy that the media of 
radio and television are in the public domain, and that they must 
render, under the law, public service, and that wherever it is 
practical and possible the situation must bring to light all sides of 
a controversy in the public interest . . . . " 36 ° While Senator 
Pastore had referred to the Proxmire amendment as "surplus- 
age," 361 he nonetheless stated that he understood "the amend- 
ment to be a statement or codification of the standards of 
fairness ..." and that the Commission was "obliged by existing 



358 105 Cong. Rec. 14,457 (1959). Senator Proxmire in offering his amendment 
stated that the purpose of the amendment was to put into the Act the 
declaration made on page 13 of the Committee Report and thus a part of the 
statute make it binding. Id, While we believe the language found on page 13 of 
the Senate Committee Report, supra n.356, only sought to preserve the 
Commission's existing policy, the language proposed by Senator Proxmire 
appears to be more of an explicit codification of the fairness doctrine. 

359 i± 

360 Id. 

361 Senator Pastore stated that he believed "we have already accomplished the 
purpose of the Senator's amendment. We have expressed it in the report." Id. 
at 14,457. 

102 KC.C. 2d 

HeinOnline — 102 Book 1 F.C.C.2d 236 1986 



Fairness Doctrine 237 

law and policy to abide by the standards of fairness." 362 Thus, it 
appears that at least some of the Senators viewed the Proxmire 
amendment as an attempt to codify the fairness doctrine. 363 

159. Unlike the Senate bill, the bill reported out of the House 
of Representatives dealt almost exclusively with correcting the 
situation brought about by the Commission's Lav Daly deci- 
sion. 36 ^ No specific amendment with respect to the general 
fairness doctrine was passed by the House of Representatives. 
The House members did, however, reject in a floor vote an 
amendment which would have required broadcasters to provide 
"equal opportunities" to opposing "representatives of any politi- 
cal or legislative philosophies]." 365 

160. Because of differences in the bills reported out of the 
House of Representatives and Senate, the respective bills were 
sent to a House-Senate Conference. 366 Within this Conference, the 
language of the Proxmire Amendment was altered by the 
Conferees to its present form. 367 In the Conference Report 368 the 
Conferees, in referring to their inclusion of language which 
referenced the fairness doctrine, explained in a short statement 
that "there is nothing in this language which is inconsistent with 
the House substitute. It is a restatement of the basic policy of 
the 'standard of fairness' which is imposed on broadcasters under 



362 105 Cong. Rec. at 14,462. 

363 There is still some doubt as to whether the Proxmire amendment if enacted 
would have codified the fairness doctrine in its entirety, especially in light of 
the fact that the majority of what little debate there was on the amendment 
centered on questions relating to fairness in the political broadcasting realm. 
See Notice, supra n.l at 1 110. 

364 However, it should be noted that in the House Committee debates there is 
evidence that members believed that broadcasters were already subject to a 
statutorily required fairness obligation. For example, Representative Cellar 
stated that: 

broadcast licensees would continue to remain subject to their present 
statutory duty to operate in the public interest. Under this general, overall 
standard of licensee responsibility, the Commission requires a licensee to be 
fair in the presentation of opposing views on controversial public issues. 

105 Cong. Rec. 16,227 (1959). 

365 id. at 16,245. 

366 h.R. Rep. No. 1069, 86th Cong., 1st Sess. (1959). The non-inclusion of any 
fairness doctrine language in the House of Representatives was not the sole 
difference between the two bills. 

367 The United States Supreme Court in Bed Lion Broadcasting Co. v. FCC, supra 
n.10 in dictum stated that the original Proxmire language "constituted a 
positive statement of doctrine and was altered to the present merely approving 
language in the conference committee." Id. at 383-84 (footnote omitted) See f 
166, infra. 

368 H.R. Rep. No. 1069, 86th Cong., 1st Sess. (1959). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 237 1986 



238 Federal Communications Commission Reports 

the Communications Act of 1934." 369 Thus, there was no discus- 
sion in the Conference Report explaining why the Proxmire 
language was altered. Moreover, the Conference Report failed to 
explain whether the original intent of the Proxmire amendment 
had been retained in this new proviso. In this connection, we also 
note that the Conference Report explains that there was nothing 
in the language inconsistent with the House substitute. In light of 
the fact that the House bill did not contain any fairness language, 
the lack of a major discussion of the inclusion of fairness doctrine 
language suggests that this provision was not viewed as being 
controversial. However, we are not certain as to the reason this 
was not a controversial issue. In this regard, it appears that there 
are several plausible rationales for the lack of discussion on this 
provision in the Conference Report. First, it could be that 
Congress was merely making explicit what it already considered 
to be a statutory obligation under the public interest standard. 
Second, there is a possibility that because Congress was only 
preserving a Commission policy and not mandating its continu- 
ance there was no need for a discussion. 370 Further, if the 
provision was largely understood as intended only to ensure fair 
treatment of candidates in programming exempted from Section 
315 J s equal opportunities provisions, there may have been general 
agreement that the proviso was desirable. Finally, it should be 
noted that, at the time, the fairness doctrine was enforced only at 
renewal, and some legislators believed it has little practical effect 
on licensees. 371 

161. In the post-Conference debates in both Houses, the 
Conferees in introducing the revised version of the bill made an 
effort to explain that the Proxmire amendment had been retained, 
at least in spirit. In particular, Representative Harris stated that: 

Now, just in case anybody in the broadcasting industry or in the Federal 
Communications Commission, or even a candidate himself, should get the 
idea that the reins are off; you can do what you want to, we have accepted 
in the Conference substitute a provision similar to what was referred to as 
the Proxmire amendment in the other body. 372 



369 id. at 5. 

370 Parties, such as MAP/TRAC, have argued that this language proves that 
Congress intended to codify the fairness doctrine. See MAP/TRAC Comments, 
supra n.50 at 29-34. Other parties point out it is mere recognition of the 
Commission's policy pursuant to the public interest standard in the Act. See 
CBS Comments, supra n.83 at 111. 

371 See Notice, supra n.l at H 112. 

372 105 Cong. Rec. 17,778 (1959). In addition, Representative Harris, stated that 
the Conferees "went further than that to be sure that there was no advantage 
taken by the broadcasting industry or anyone else and reaffirmed the 'standard 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 238 1986 



Fairness Doctrine 239 

Likewise, in the Senate debates, Senator Pastore pointed out that 
"while the House conferees found some fault with the so-called 
Proxmire amendment, we insisted it be retained in the bill, if with 
some slight modifications, because it was the one condition we 
could write into the law to make sure the Federal Communica- 
tions Commission would give the matter the right interpreta- 
tion."^ 

162. These statements may lend some support for the proposi- 
tion that a byproduct of the 1959 Amendments was a codification 
of the fairness doctrine. In the House of Representatives, 
however, the dialogue between Representatives Avery and Harris 
lends support to the contrary position that Congress intended 
solely to preserve the fairness doctrine. Specifically, Representa- 
tive Avery questioned whether or not the "standard of fairness 
still prevails in the basic Act irrespective of any changes that 
were made in Section 315" and that "it applies not only to 
political candidates, but issues and editorializing by licensees as 
well." 374 In response, Representative Harris agreed that the 
standard remained and added that the conferees "discussed this 
particular item" and "agreed that the standard of fairness must 
prevail, and applies to the programs which will be exempted from 
the equal- time requirements of Section 315," 375 As demonstrated 
by these discussions, the majority of the debate on the fairness 
doctrine in both Houses centered around assuring that despite the 
new amendment the doctrine remained in the context of political 
broadcasting. This is understandable since the reason for Con- 
gress' action was overturning the Lar Daly decision. 

163. While this appears to have been the focus of most of the 
debates, in the Senate at least one Senator believed that the 
fairness doctrine was being codified in its entirety. Specifically, 
Senator Scott pointed out that: 

[W]e have maintained very carefully the spirit of the Proxmire amendment, 
and I ought to point out . . . that the phrase "to afford reasonable 
opportunity for the discussion of conflicting views on issues of public 
importance" does not refer merely to political discussions as such or to 
opposing views of political parties or of candidates. It is intended to 
encompass all legitimate areas of public importance which are 



of fairness' established under the Communications Act," Id. 

373 Id. at 17,830. 

374 Id. at 17,779. 

375 Id. 



102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 239 1986 



240 Federal Communications Commission Reports 

controversial . . . and it is intended that no one point of view shall gain 
control over the airwaves to the exclusion of another point of view, 376 

Senator Case, however, did immediately afterwards endorse every- 
thing that Senator Scott stated and everything stated in the 
Conference Report. 377 None of the other Senators offered any 
remarks on the correctness of Senator Scott's statement. 

184. We also found other statements in the legislative history 
which suggested that some members did believe that the fairness 
doctrine should not be a mandatory obligation. In particular, we 
note the statement of Representative Brown who expressed regret 
that the final bill "does not go quite as far as I would like toward 
giving freedom of information over the radido and television such 
as is enjoyed by the press of the Nation." 378 While there are a few 
statements throughout the legislative history discussing the 
fairness obligation, there is no evidence that clearly demonstrates 
an intent by Congress to codify the doctrine. Although as NBC 
observes "[t]he legislative discussion of the fairness doctrine 
cannot achieve what the statutory language fails to do," 379 
neither the statutory language nor the legislative history of 
section 315 provides a satisfactory answer to the question of 
congressional intent. 

5. Judicial Interpretations of the 1959 Amendments. 

165. As CBS points out the question of whether or not 
Congress has enacted the fairness doctrine as a statutory 
mandate has never been directly considered by any court. 380 In 
Red Lion Broadcasting Co. v. FCC, 381 the United States Supreme 
Court in upholding the personal attack and political editorializing 
rules did however provide dictum pertaining to the statutory 
implications of the 1959 Amendments to the Communications 
Act. Proponents and opponents alike have cited the Red Lion 
decision as supporting their respective positions concerning the 
statutory nature of the fairness doctrine. While the Court did 
examine the legislative history of Section 315, it failed to reach a 
clear conclusion as to whether the doctrine was codified. In this 
regard, we note that after citing the language at the end of 



376 Id. at 17,831. 

377 id. at 17,832. 
378/^ a t 17,781. 

379 "Reply Comments of National Broadcasting Company, Inc." at 21. [hereinafter 
cited as "NBC Reply Comments"]. 

380 See CBS Comments, supra n.86 at 124. 
38! 395 U.S. 367 (1969). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 240 1986 



Fairness Doctrine 241 

Section 315(a) the Court stated: 

[t]his language makes it very plain that Congress, in 1959, announced that 
the phrase "public interest," which had been in the Act since 1927, 
imposed a duty on broadcasters to discuss both sides of controversial 

public issues. 382 

As proponents of the fairness doctrine contend this language 
suggests that the Court "viewed Congress' action as a codifica- 
tion of the FCC's interpretation that the fairness doctrine was an 
inextricable element of the 'public interest' section of the Act." 383 
In addition, the Red Lion Court stated that "[hjere, the Congress 
has not just kept its silence by refusing to overturn the 
administrative constructio, but has ratified it with positive 
legislation." 384 

166. Although this language implies that the Red Lion Court 
believed the 1959 amendments to be an explicit codification of the 
fairness doctrine, other language found in the decision just as 
equally suggests that it was only codified with respect to the 
political broadcasting realm or not at all. In particular, the Court 
stated that Congress "knowingly preserved the FCC's complemen- 
tary efforts." 385 In this connection, we note that preservation of a 
Commission policy indicates that it is not a mandatory obligation 
of broadcasters and does not foreclose our discretion to later 
reevaluate that policy. Moreover, the Court in referring to the 
Proxmire amendment states that: 

[t]his amendment, which Senator Pastore, a manager of the bill and a 
ranking member of the Senate Committee, considered "rather surplusage," 
constituted a positive statement of doctrine and was altered to the present 
merely approving language in the Conference Committee. 386 (emphasis 
added). 

Commenters who argue that the fairness doctrine is not statutory, 



382 /d. at 380. 

383 MAP/TRAC Comments, supra n.50 at 35-36. This proposition is supported by 
the Court's subsequent statement that the congressional action in 1959 was a 
vindication of the "FCC's general view that the fairness doctrine inhered in the 
public interest standard." Red Lion Broadcasting Co. v. FCC, 395 U.S. at 380. 

384 Id. at 381-82 (footnote omitted). The NTIA cites Black's Law Dictionary for 
the proposition that "[ratification means the adoption of the act of another as 
one's own act, with the resulting responsibility for the consequences of that 
act." Reply Comments of the National Telecommunications and Information 
Administration'' at 14 [hereinafter cited as "NTIA Reply Comments"]. In light 
of the subsequent statements made in the Red Lion decision, we are not certain 
what the Court reference to the doctrine having been ratified meant. 

^^Red Li on Broadcasting Co. v. FCC, 395 U.S. at 385. 
386 id. at 383-84 (citations omitted). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 241 1986 



242 Federal Communications Commission Reports 

contend that this language proves that the Court viewed the 
proviso as not mandating, but merely endorsing the Commission's 
then existing policy. 387 For example, CBS contends that the 
Court's analysis in Red Lion "made clear that the doctrine was 
not being displaced by the exemptions to the equal time 
provisions, it did not deprive the Commission of the power later 
to determine that the public interest would be better served by 
the doctrine's rescission." 388 

167. Four years later the United States Supreme Court in 
Columbia Broadcasting System v. Democratic National Commit- 
tee^ 9 also in dictum addressed the statutory implications of the 
1959 Amendments to the Communications Act. However, the 
Court once again used ambiguous terminology in referring to the 
fairness doctrine. Therein, the Court stated that "[i]n 1959, 
Congress amended §315 of the Act to give statutory approval to 
the Fairness Doctrine/' 390 Standing alone this language could 
suggest that the Court understood the 1959 amendments to 
codify the fairness doctrine. Contrarily, this same statement could 
stand for the proposition that Congress was recognizing and 
approving the doctrine, but not mandating its retention. More- 
over, in the same footnote the Court while discussing Congress' 
enactment of § 312(a) states that "[t]his amendment essentially 
codified the Commission's prior interpretation of § 315(a) as 
requiring broadcasters to make time available to political candi- 
dates/' 391 If the Court had meant to suggest that the fairness 
doctrine was codified, it could have stated that the fairness 
doctrine had been codified as it did in reference to § 312(a). We 
are not certain if the Court's choice of the term " statutory 
approval" was meant to suggest that the fairness doctrine is not 
statutory. Moreover, Justice William Brennan joined by Justice 
Thurgood Marshall in a dissenting statement determined that: 

The statutory authority of the Commission to promulgate this doctrine 
and related regulations derives from the mandate to the "Commission from 
time to time, as public convenience, interest, or necessity requires," to 
promulgate "such rules and regulations and prescribe such restrictions and 



387 See RTNDA Comments, supra n.141 at 21. 

388 See CBS Comments, supra n.83 at 125 (footnote omitted). 

3S9 412 U.S. 94 (1973). (The Court upheld the Commission's determination that the 
public interest would not be served by requiring broadcasters to accept 
editorial advertisements). 

390 Id, at 113 n.12 (emphasis added). 

391 Id. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 242 1986 



Fairness Doctrine 243 

conditions ... as may be necessary to carry out the provisions of [the 

Act] . . . " 392 (citations omitted) 

That these Justices concluded that the * 'Fairness Doctrine was 
recognized and implicitly approved by Congress in the 1959 
amendments to § 315 of the Act," 393 suggests, as evidenced by 
the above statement, that they did not necessarily view it as 
having been mandated by section 315 of the Act. We have no 
evidence as to whether the other Justices agreed with this 
interpretation. 

168. Because the United States Supreme Court so far has not 
given a definitive answer on whether or not the fairness doctrine 
has been explicitly codified into the Communications Act, we 
examined the cases in the United States Circuit Courts of Appeal. 
While some of these courts have, in passing, discussed the 
statutory nature of the fairness doctrine, none has specifically 
addressed in a reasoned decision the question of whether or not 
the fairness doctrine is codified. The Courts, which in dictum 
state that the fairness doctrine was codified in 1959, generally do 
not discuss the rationale behind their conclusions. Indeed, many 
of these Courts have adopted — without any discussion as to its 
correctness — the Commission's interpretation on whether or not 
the fairness doctrine was codified as part of the Communications 
Act, 394 Other Courts have relegated their discussion of the 
statutory nature of the fairness doctrine to a sentence or two in a 
footnote, 395 

169. At least one Court has specifically determined that the 
fairness doctrine has not been codified. The United States Circuit 
Court of Appeals for the First Circuit in Public Interest Research 
Group v. FCC 396 in upholding the Commission's determination 
that the fairness doctrine would only apply to commercial 
advertisement that spoke in an obvious and meaningful way to 
public issues stated, in dictum, that the "fairness doctrine is not a 



392 Id. at 185 n.16. (Brennan, J., dissenting). 

393 7c?. at 185 n.15. (citations omitted). 

394 See, e.g., Green v. FCC, 447 F.2d 323, 327 n.6 (D.C. Cir. 1971) (the Court cited 
the FCC's ruling In re Obligations of Broadcast Licensees Under the Fairness 
Doctrine, 23 FCC 2d 27, 28 (1970) and Brandywine — Mainline Radio, Inc., v. 
FCC, 473 F.2d 16 (D.C. Cir. 1972), cert, denied 412 U.S. 922 (1973) (The Court 
quoted the FCC's opinion in Committee for the Fair Broadcasting of Controver- 
sial Issues, 25 FCC 2d 283, 291 (1970). In this regard, we note that both of 
these Commission decisions cited by the courts found the fairness doctrine to 
have been codified in the 1959 Amendments. 

395 See, e.g., Maier v. FCC, 735 F.2d at 225 n.5 and Banzhaf v. FCC, 405 F.2d at 
1095 n.49. 

396 522 F.2d 1060 (1st Cir. 1975). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 243 1986 



244 Federal Communications Commission Reports 

creature of statute but was evolved over the years by the 
Commission under the 'public interest' standard of the Communi- 
cations Act." 397 Moreover, the Court declared that Congress only 
"acknowledged and generally endorsed the Commission's adoption 
of fairness standards." 398 

170. In Straus Communications, Inc. v. FCC, 399 the court found 
that the fairness doctrine "received explicit statutory recognition 
in the 1959 amendments/' 400 The precise ramifications of Con- 
gress giving "statutory recognition" are unclear. Moreover, the 
Court made this statement without any substantive discussion 
indicating its meaning. 

4. Commission Interpretations of the 1959 Amendments 

171. Although some Courts have relied upon Commission 
interpretation of the fairness doctrine's statutory nature, the 
Commission itself has not steadfastly found the doctrine to have 
been codified. Over the years, the Commission has reassessed the 
implications of the 1959 amendments to the Communications Act. 
While some Commission decisions have without much discussion 
assumed that Congress codified the doctrine in 1959, 401 other 
Commission determinations have found that Congress only "rati- 
fied] the Commission's then-existing policy concerning application 
of the Fairness Doctrine to news broadcasts." 402 And still other 
Commission decisions have been ambivalent on whether the 



397 Id. at 1066 (emphasis added). Complainants in this case had specifically argued 
that the fairness doctrine was codified. However, the Court concluded that 
Congress had delegated under the general public interest standard the 
enforcement of the fairness doctrine. 

398 Id. (citations omitted). 

399 530 F.2d 1001 (D.C. Cir. 1976). 

400 Id. at 1007 n.ll. See also American Security Council Education Foundation v. 
FCC, 607 F.2d 438 (D.C. Cir. 1979), cert denied, 444 U.S. 1013 (1980). The 
District of Columbia Circuit Court of Appeals therein stated that "[i]n 1959, 
Congress confirmed the Commission's view that the fairness doctrine was part 
of the public interest standard" Id. at 443 n.12. 

401 See Study of Fairness Doctrine, 30 FCC 2d 26, 26-27 (1971) and 1974 Fairness 
Report, supra n.3. It should be once again pointed out that the 1949 Fairness 
Report, supra at n.6, found the doctrine to be statutory solely under the 
general public interest standard. 

402 Report and Order in BC Docket No. 81-741, FCC 83-120, 53 RR 2d 1309 
(1983). See also Notice of Proposed Rule Making in MM Docket No. 83-331, 
FCC 83-130 (released May 25, 1983). (Commission stated that Fairness 
Doctrine was "statutorily approved" by Congress). We also note that then 
Chairman Richard E. Wiley in a separate statement to the reconsideration of 
the 1974 Fairness Report concluded that 'The literal wording of the statute 
indicates only that the Commission's fairness policies were left undis- 
turbed. ..." Memorandum Opinion and Order on Reconsideration of the 
Fairness Report, 58 FCC 2d at 700 (separate statement of Chairman Wiley). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 244 1986 



Fairness Doctrine 245 

doctrine was codified. 403 Thus, the Commission has never defini- 
tively concluded that the fairness doctrine was codified in 1959, 

5. Subsequent Congressional Interpretations of the 1959 

Amendments 

172. Finally, we examined subsequent statements by Congress, 
including the statements of key figures in the 1959 amendment to 
section 315, to ascertain Congressional views on the statutory 
nature of the fairness doctrine. Once again we discovered there 
was evidence both supporting the codification proposition and 
opposing it. We begin with those statements suggesting that 
Congress in 1959 codified the fairness doctrine. In particular, 
Senator Pas tore during congressional hearings in 1963 on further 
amending the equal time provision, implied that section 315 
codified the fairness doctrine and that if there were any changes 
made to section 315, "there ought to be a restatement on the 
fairness doctrine." 404 Moreover, Senators Pastore and Proxmire in 
a 1975 hearing on bills to eliminate the fairness doctrine, gave 
their beliefs that the doctrine had been codified in 1959. Specifi- 
cally, in his opening statement, Senator Proxmire explained that: 

Although the fairness doctrine dates back to 1949 in a sophisticated form, 
it was not until 1959 that it was recognized in the United States Code. I 
had a hand in putting it there. 405 

This conclusion was expanded upon by Senator Pastore who 
simply stated "we codified [the fairness doctrine] in 1959." 406 

173. There also exists subsequent legislative statements sug- 
gesting that even Congress itself was not certain whether the 
fairness doctrine has been codified. 407 In this connection, we note 
that in 1968, less than ten years after the amendments to section 
315, a study of the legislative history of the fairness doctrine was 
prepared for the Special Subcommittee on Investigations of the 
House Committee on Interstate and Foreign Commerce, 408 



403 See Notice of Proposed Rule Making in MM Docket No. 83-670, 94 FCC 2d 
678, 706 n.50 (1983). 

404 Equal Time: Hearings on S.251, S.252, SJ696, and H.J. Res. 247 Before the 
Subcomm. on Communications of the Senate Comm. on Commerce, 88th. Cong., 
1st Sess. 59 (1963). See also NTIA Comments, supra n.348 at 9. 

405 Fairness Doctrine: Hearings on S.2, S. 608 and S.1178 Before the Subcomm. on 
Communications of the Senate Comm. on Commerce, 94th. Cong., 1st. Sess. 13 
(1975). 

4 °6/d. 

407 See, e.g., Notice supra n.l at 1 111 n.157. 

40S Manelli Report, supra n.318. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 245 1986 



246 Federal Communications Commission Reports 

(Manelli Report). The Manelli Report, after an exhaustive study of 
the legislative history, concluded that "the legislative history of 
the Communications Act with respecti to the Fairness Doctrine 
does not establish whether the doctrine should properly be 
considered a part of the statute." 409 In addition, the Manelli 
Report contended that Congress "intended neither approval nor 
disapproval of it (fairness doctrine), but merely intended to ensure 
that Section 315 would not interfere with it." 410 The Senate also 
issued a staff study in 1968 which determined that "Section 315 
is a congressional enactment and the 'fairness doctrine,' although 
a qualifying reference to it apears in section 315, is not." 411 
However, it did find that the "public interest, convenience, and 
necessity, requires each broadcast licensee to devote a reasonable 
percentage of his broadcast time to the presentation of programs 
dealing with issues of interest in the community served by the 
particular station." 412 

174. As demonstrated by the conflicting evidence found in the 
record, reaching a conclusion as to whether or not Congress has 
mandated our retention of the fairness doctrine is a difficult 
determination. We believe it unnecessary, however, to reach a 
definitive conclusion on this matter given our determination to 
defer action concerning the fairness doctrine pending review by 
Congress of the record compiled in this proceeding. 

VI. Conclusion 

175. Based on the voluminous record compiled in this proceed- 
ing, our experience in administering the doctrine and our general 
expertise in broadcast regulation policy determinations, we believe 
that as a policy matter the fairness doctrine no longer serves the 
public interest. Moreover, the development of the information 
services marketplace makes unnecessary any governmentally 
imposed obligation to provide balanced coverage of controversial 
issues of public importance. Furthermore, we have found that far 
from serving its intended purpose, the doctrine has a chilling 
effect on broadcaster's speech. Accordingly, we have questioned 
the permissibility of the doctrine as a matter of both policy and 
constitutional law. 

176. Notwithstanding these conclusions, we have decided not to 



409 Id. at 28. 
4io id. at 29. 

411 Staff Report of the Senate Committee on Commerce, 90th. Cong., 2d Sess. 4 
(Comm. Print. 1968). 

412 Id. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 246 1986 



Fairness Doctrine 247 

eliminate the fairness doctrine at this time. The doctrine has been 
a longstanding administrative policy and a central tenet of 
broadcast regulation in which Congress has shown a strong 
although often ambivalent interest. Indeed, while Congress has 
not yet chosen to eliminate the doctrine legislatively, several 
members of Congress have recently sponsored bills seeking to 
abolish the fairness doctrine and its related policies. 413 Congress 
also has held hearings to determine whether or not it should enact 
legislation to eliminate the doctrine. 414 In addition, we recognize 
that the United States Supreme Court in FCC v. League of 
Women Voters of California 415 has similarly demonstrated an 
interest in our examination of the constitutional and policy 
implications underlying the fairness doctrine. Because of the 
intense Congressional interest in the fairness doctrine and the 
pendency of legislative proposals, we have determined that it 
would be inappropriate at this time to eliminate the fairness 
doctrine. Given our decision to defer to Congress on this matter, 
we also believe that it would be inappropriate for us to act on the 
various proposals to modify or restrict the scope of the fairness 
doctrine. It is also important to emphasize that we will continue 
to administer and enforce the fairness doctrine obligations of 
broadcasters and to underscore our expectation that broadcast 
licensees will continue to satisfy these requirements. 

177. Accordingly, IT IS ORDERED, THAT this proceeding IS 
TERMINATED. 

178. IT IS FURTHER ORDERED, THAT the motions re- 
questing acceptance of late-filed pleadings ARE GRANTED. 

179. IT IS FURTHER ORDERED, THAT the "Application for 
Review" filed by the Media Access Project is DENIED. 

180. IT IS FURTHER ORDERED, THAT the Secretary 
SHALL CAUSE this Report to be printed in the Federal 
Communications Commission Reports. 



413 See, e.g., S.1038, 99th Cong., 1st Sess. (1985); S. 22, 99th Cong., 1st Sess. 
(1985); H.R. 5585, 97th Cong., 2d Sess. (1982); and S. 22, 98th Cong., 1st Sess. 
(1983). 

414 See, e.g., Freedom of Expression Act of 1983: Hearings on S.1917 Before the 
Committee on Commerce, Science, and Transportation, 98th Cong., 2d Sess. 
(1984). Senator Bob Packwood also requested that a staff report prepared by 
the National Telecommunications and Information Administration be printed 
for use by the Senate Committee on Commerce, Science, and Transportation. 
Print and Electronic Media: The Case for First Amendment Parity Printed at 
the Direction of Senator Bob Packwood for the Committee on Commerce, 
Science, and Transportation, 98th Cong., 1st Sess. (1983). This study examined 
in detail whether there should be first amendment parity between the print and 
electronic media. 

4 15 104 S.Ct. 3106 (1984). See 1 15, supra. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 247 1986 



248 Federal Communications Commission Reports 

181. IT IS FURTHER ORDERED, THAT the Secretary 
SHALL FORWARD copies of this Report to the appropriate 
Committees and Subcommittees of the House of Representatives 
and the Senate, 



Federal Communications Commission 

WILLIAM J. TRICARICO, Secretary 
Appendix 

Parties Submitting Formal Comments in Gen. Docket No. 

84-282* 

Accuracy in Media 

American Advertising Foundation 

American Association of Advertising Agencies 

American Broadcasting Co. ("ABC") 

American Cancer Society 

American Civil Liberties Union ("ACLU") 

American Heart Association 

American Jewish Committee 

American Jewish Congress 

American Legal Foundation ("ALF") 

American Newspaper Publishers Association 

Antidefamation League of the B'nai B'rith 

Arizona Television Co. 

Ashville Musicians and Artists for a Sane Environment 

Association of National Advertisers 

Black Citizens for a Fair Media/Citizens Communications Center/League of 
United Latin American Citizens/National Association of Better Broadcasting 



*For purposes of compiling this list of parties filing comments and reply 
comments, a filing was considered "formal" if it included the correct docket 
number and the proper number of copies were submitted. 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 248 1986 



Fairness Doctrine 249 

("BCFM et. al.") 
CBS, Inc. ("CBS") 
Committee for Community Access 
Common Cause 

Democratic National Committee i 

Eagle Forum 

Elba Development Corp/Multimedia, Inc. and Providence Journal Co. 
Forward Communications Co., et al 
Foundation for the Arts of Peace 
Freedom of Expression Foundation ("FEF") 

General Motors/International Paper Co./Campbell Ewald Co, ("General Motors et 

al") 

Henry Geller/Donna Lampert 

Glass Packaging Institute 

Robert C, Greene 

KGRL 940 (Gary Capps) 

KIPR 95.FM 

KMAN (B. Thornton) 

Pamela Magasich 

Maine Nuclear Referendum Committee 

Luther Martin 

Media Action Project Telecommunications Research and Action Center 
("MAP/TRAC") 

Meredith Corp. 

Midwest Family Group 

Mobil Corp. 

National Association of Broadcaster ("NAB") 

National Broadcasting Co. ("NBC") 

National Cable Television Association 

National League of Cities 

National Radio Broadcasters Association 

National Rifle Association of American 

National Telecommunications and Information Administration ("NTIA") 

People for the American Way 

Post-Newsweek 

Public Broadcasting Service and National Association of Public Television 



102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C.2d 249 1986 



250 Federal Communications Commission Reports 

Stations 
Public Media Center 

Radio Television News Director Association 
Society of Professional Journalists 
Tribune Broadcasting Co. i 

United States Catholic Conference 

Office of Communications of the United Church of Christ 
Westinghouse Broadcasting and Cable ("Group W") 
Yes to Stop Calloway Committee 

Parties Submitting Formal Reply Comments 

Actors Equity Guild et al 

American Arab Anti-Discrimination Committee 

ABC 

ACLU 

American Federation of Labor and Congress of Industrial Organizations 

ALF 

Authors League of American 

Byron Bailer 

Toni Bean 

BCFM, et al 

Eric Buchanan 

Deborah Bynum 

Laura Byrd 

CBS 

Center for Science in the Public Interest 

Sharon Chambers 

Choosing Our Future 

Committee for Responsible Investment, Medical Mission Sisters 

Department for Professional Employees, AFL-CIO 

Ecumedia 

Donise Edwards 

Janis Ernst 

Cheryl N. Freeman 

FEF 

Alyce F. Gaither 

Henry Geller/Donna Lampert 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C.2d 250 1986 



Fairness Doctrine 251 

General Motors et al 

Sidney Hall 

John Harvey Kentucky Fair Tax Coalition 

Catherine LaMarr 

Andrew Lee ; 

Mark Loud 

Shari Mauney 

MAP/TRAC 

NAB 

National Bar Association/National Association for the Advancement of Colored 
People 

NBC 

National Coalition to Ban Handguns 

NTIA 

Kay Pierson 

Robert Rivers 

Rhonda Rhea 

Rosemary Ryan, M.D. et al 

Safe Energy Alliance of Alabama 

Jennifer Small 

United States Catholic Conference 

United States Public Interest and Research Group 

Telecommunications Research and Action Center 

Cheryl Thompson 

Laurie Washington 

Group W 

Yvette Williams 

August 7, 1985 

STATEMENT OF MARK S. FOWLER, CHAIRMAN 

Re: Fairness Doctrine Report 

250 years ago this week, a publisher named John Peter Zenger 
was on trial. Zenger ran the Weekly Journal, a New York paper 
that had reprinted the letters of two Whig journalists who had 
argued in their essays for freedom of the press, that "freedom of 
speech is ever the symptom as well as the effect of good 
government/' For this, and for being a critic of the British 
authorities, Zenger had been charged with seditious libel by the 

102 F.C.C. 2d 

HeinOnline — 102 Book 1 F.C.C. 2d 251 1986 



252 Federal Communications Commission Reports 

Governor General of New York. He spent almost a year in jail 
awaiting trial. Although he was surely guilty under the prevailing 
laws at the time, the jury acquitted Zenger. 

The lessons of the Zenger trial have never been lost on the 
United States, nor on this Commission. Today's report is linked 
to this country's tradition of people to criticize their government 
without recrimination or licensing. 

Justice William 0. Douglas foreshadowed this viewpoint in his 
own repudiation of the Fairness Doctrine 12 years ago. He 
said; "The Court . . . by endorsing the Fairness Doctrine sanc- 
tions a federal saddle on broadcast licensees that is agreeable to 
the traditions of nations that never have known freedom of press 
and that is tolerable in countries that do not have a written 
constitution containing prohibitions as absolute as those in the 
First Amendment." 1 

This very week the British Broadcasting Corporation experi- 
enced a walk-out of its journalists. They did not strike over wages 
or seniority, but over the matter that concerns us today: their 
freedom of the broadcast press to cover a controversial issue of 
public importance in the manner they saw fit. Justice Douglas 
was right: there is a difference amongst the nations of this world 
that have a constitutional protection against restraints on press 
and those that, unhappily, do not. 

So it is freedom, then, that is at the heart of this exemplary 
example of draftsmanship from the Mass Media Bureau. I have 
made the advancement of First Amendment rights an uppermost 
objective of my Chairmanship. I feel pride and satisfaction that 
we have a report that comprehensively reviews the operation and 
context of the Fairness Doctrine and considers the comments of 
all those who participated in our proceeding. It responds to the 
arguments of proponents and opponents of the Fairness Doctrine 
in a scholarly and responsible manner. 

Today's report is an indictment of a misguided government 
policy. It is a recital of its shortcomings, both legal and practical. 
The First Amendment dictates: Choose between the right of the 
press to criticize freely and the authority of the government to 
channel that criticism. Today's order is a statement by this 
Commission that we should reverse course, and head ballistically 
toward liberty of the press for radio and television. Free speech 
and free government thrive together or they fail together. John 



1 Columbia Broadcast System v. Democratic Nat'l Comm., 412 U.S. 94, 817-18 
(1973) (concurring opinion). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 252 1986 



Fairness Doctrine 253 

Peter Zenger said that. William O. Douglas said that. And today, 
so do we* 

August 7, 1985 
Concurring Statement of FCC Commissioner James H. Quello 

In re: Inquiry into the General Fairness Doctrine Obligations of 
Broadcast Licensees. 

This Report contains a very well reasoned and persuasive 
indictment of the fairness doctrine. It presents conclusive evi- 
dence that the doctrine is unnecessary and that it does not 
further its purpose of encouraging the presentation of controver- 
sial issues of public importance. The Report strongly documents 
its ultimate conclusion that the fairness doctrine does not serve 
the public interest, and I fully support that conclusion. 

I wish to emphasize, however, my determination that this 
record compels the conclusion that Congress intended to codify 
the fairness doctrine as part of the 1959 amendments to the 
Communications Act. 1 The Commission has long acquiesced 
in the view that the fairness doctrine was codified by these 
amendments, 2 and, thus, the burden of proof must rest with 
those who would urge that the agency itself has authority to 
eliminate the doctrine. In my view, nothing in the record 
contradicts the clear language of section 315(a) which states that 
licensees have an "obligation imposed upon them under [the 
Communications Act] to operate in the public interest and to 
afford reasonable opportunity for the discussion of conflicting 
views on issues of public importance." 3 

Since I believe that the doctrine has been codified, I concur in 
the decision to defer to Congress on this matter. 



1 See Act of September 14, 1959, Pub. L. No. 86-274, § 1, 73 Stat. 557 
(amending 47 U.S.C. § 315(a) (1952)). 

2 See, e.g., Fairness Report, 48 F.C.C.2d 1, 1 (1974). 

3 47 U.S.C. § 315(a) (1984). 

102 F.C.C. 2d 



HeinOnline — 102 Book 1 F.C.C. 2d 253 1986 



254 



Federal Communications Commission Reports 



Application, Amendment of, Change of Ownership 
Application, Amendment of, Effect on Pending Application 
Application, Amendment of, Substantial Change 
Change, Major 
Ownership Changes 

Review Board reversed ALJ's return of application to pro- 
cessing line as result of an amendment showing a change in 
ownership. Under Sec, 73.357(b) (as amended), changes in 
ownership interests do not constitute "major" changes unless 
they result in the original parties to the application retaining 
50% or less of the ownership interests. 
—International B/c Consultants, Inc. 
MM Docket No. 84-157 

FCC 85R-73 

BEFORE THE 

FEDERAL COMMUNICATIONS COMMISSION 

Washington, D.C. 20554 



In re Applications of 

International Broadcast Consultants, Inc. 
Gardnerville, Nevada 



Alegria I, Inc. Marina, California 



Elizabeth Waters, Phyllis Moore, 
Gloria McKinley and Verna Rolls, 
d/b/a Heritage Communications 
Yountville, California 

For Construction Permit 
for a New AM Station 



MM Docket 
No. 84-157 
File No. 
BP-811015AJ 

MM Docket 
No. 84-159 
File No. 
BP-811015AJ 

MM Docket 
No. 84-160 
File No. 
BP-811015AK 



102 F.C.C. 2d 



HeinOnline 



102 Book 1 F.C.C.2d 254 1986
Internet Archive Audio

Featured

Top

Images

Featured

Top

Software

Featured

Top

Texts

Featured

Top

Video

Featured

Top

Mobile Apps

Browser Extensions

Archive-It Subscription

Save Page Now

Full text of "Fairness Report"

See other formats
